[No. 76665-7. En Banc.]
Argued November 15, 2005. Decided March 16, 2006.
THE STATE OF WASHINGTON , Respondent , v. JOSHUA JAMES ERMELS , Petitioner . [1] Criminal Law - Punishment - Sentence - Outside Standard Range - Plea Bargain - Stipulation - Consent to Judicial Fact Finding - Effect. A criminal defendant may waive
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<<fv;0>the Sixth Amendment right to have a jury determine the facts supporting a sentence above the standard sentencing range by pleading guilty and stipulating to the relevant sentencing facts or consenting to judicial fact finding. A defendant who stipulates to facts supporting an exceptional sentence and that a legal basis exists for an exceptional sentence necessarily relinquishes any opportunity to have a jury determine the factual basis for an exceptional sentence.
[2] Criminal Law - Punishment - Sentence - Outside Standard Range - Aggravating Circumstances - Determination - By Jury - New Rule - Retroactivity. The rule stated in Blakely v. Washington , 542 U.S. 296 (2004), that a criminal defendant has a Sixth Amendment right to have a jury decide the sentencing facts, other than the fact of prior conviction, that would increase the penalty for a conviction beyond the top end of the standard sentencing range applies to all cases pending on direct review and not yet final on the date Blakely was decided.
[3] Criminal Law - Punishment - Sentence - Outside Standard Range - Stipulation - Effect. A trial court may sentence a criminal defendant outside the standard range based on the defendant's stipulation that the facts support an exceptional sentence and that there is a legal basis for imposing an exceptional sentence.
[4] Criminal Law - Punishment - Sentence - Outside Standard Range - Review - Adequacy of Reasons - Multiple Reasons - Validity of Some But Not All. An appellate court may uphold a sentence outside the standard range based on one or more of the reasons set forth by the trial court to justify the sentence if the appellate court is satisfied that the trial court would have imposed the same sentence based on the valid factor(s) alone.
[5] Criminal Law - Punishment - Sentence - Outside Standard Range - Stipulation - Reversal - Necessity. A convicted offender who is sentenced above the standard range is not entitled to be resentenced within the standard range under State v. Hughes , 154 Wn.2d 118 (2005), based on a claimed violation of the Sixth Amendment right to have a jury decide the facts justifying an exceptional sentence if the defendant stipulated to the facts and legal basis for imposing the sentence.[6] Criminal Law - Punishment - Sentence - Outside Standard Range - Aggravating Circumstances - Determination - By Jury - Plea of Guilty - Stipulation to Exceptional Sentence - Blakely Decision - Effect. A defendant who pleads guilty to a charge and is sentenced above the standard range based on a plea agreement in which the defendant stipulates to facts supporting an exceptional sentence and that there is a legal basis for imposing an exceptional sentence may not challenge the validity of
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the stipulations based on the subsequently announced rule in Blakely v. Washington , 542 U.S. 296 (2004) (giving a defendant a right to have a jury decide the sentencing facts, other than the fact of prior conviction, that would increase the penalty for a conviction beyond the top end of the standard sentencing range) unless the defendant challenges the validity of the plea agreement as a whole or demonstrates by an objective manifestation an intent to treat the stipulations as a divisible portion of the plea agreement.
[7] Criminal Law - Punishment - Sentence - Outside Standard Range - Plea Bargain - Stipulation - Waiver of Right to Appeal - Effect. A defendant who pleads guilty to a charge and is sentenced above the standard range based on a plea agreement containing an express waiver of the right to appeal "the basis for and propriety of the imposition of an exceptional sentence upward" is precluded from challenging the validity of the waiver unless the defendant challenges the validity of the plea agreement as a whole or demonstrates by an objective manifestation an intent to treat the waiver as a divisible portion of the plea agreement.
Nature of Action: Prosecution for second degree manslaughter.
Superior Court: The Superior Court for King County, No. 02-1-06744-8, Steven G. Scott, J., on July 11, 2003, entered a judgment on the defendant's Alford plea of guilty and sentenced the defendant above the standard range. In the Alford plea, the defendant stipulated to facts supporting an exceptional sentence based on victim vulnerability and to the legal basis for the exceptional sentence, and waived the right to appeal "the basis for and propriety of the imposition of an exceptional sentence upward."
Court of Appeals: The court affirmed the judgment at 125 Wn. App. 195 (2005), holding that the defendant's waiver of his right to appeal the exceptional sentence prevented review of a challenge to the sentence based on a subsequently announced decision by the United States Supreme Court that defendants have a right to have a jury decide the sentencing facts on which a sentence above the standard range is based.
Supreme Court: Holding that the defendant could not challenge the stipulation and waiver without challenging the entire plea agreement, the court affirms the decision of the Court of Appeals and the judgment.
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Oliver R. Davis (of Washington Appellate Project ), for petitioner.
Norm Maleng , Prosecuting Attorney, and Nelson K.H. Lee and Brian M. McDonald , Deputies, for respondent.
¶1 BRIDGE, J. - Joshua James Ermels pleaded guilty to manslaughter in the second degree after he stomped on the head of an unconscious victim and the man later died. As part of his plea agreement, Ermels stipulated to facts supporting an exceptional sentence based on victim vulnerability, and he stipulated that there was a legal basis for an exceptional sentence. He also specifically waived his right to appeal the basis for and propriety of an exceptional sentence. Ermels nevertheless argued to the Court of Appeals, after Blakely v. Washington was decided, that he had not knowingly, intelligently, and voluntarily waived his right to appeal or his right to have a jury find the facts necessary to support his exceptional sentence. 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). Notably, in this court Ermels does not argue that his exceptional sentence relies on impermissible Blakely fact finding. He asks that this court reverse his exceptional sentence and remand for resentencing within the standard range.
¶2 We conclude that Ermels cannot obtain the remedy he seeks. Ermels stipulated to the facts supporting his exceptional sentence and that there was a legal basis for an exceptional sentence. Because those elements were indivisible from the rest of his plea agreement, he cannot challenge the exceptional sentence without challenging the entire plea. For the same reason, Ermels cannot challenge the validity of his appeal waiver without challenging his entire plea. Because Ermels does not challenge his entire plea, we affirm the Court of Appeals and uphold his exceptional sentence.
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I
Statement of Facts
¶3 Shortly before 1 A.M . on July 14, 2002, Mike Kaneski and his roommate were walking home to their apartment. In front of a grocery store, the men encountered Ermels and Floyd Atkins. Shortly after, Ermels entered the grocery store. Atkins then accused the men of " 'having a problem' " with his friend. Clerk's Papers (CP) at 3. Atkins punched Kaneski in the face and Kaneski fell to the ground, striking his head on the cement and losing consciousness.
¶4 Ermels exited the grocery store and confronted Kaneski's roommate, who was trying to call 911 from a pay phone. Several witnesses reported that Ermels then approached Kaneski as he lay unconscious, jumped into the air, and stomped on Kaneski's head. Ermels kicked Kaneski a second time before leaving the scene with Atkins. When police arrived, Kaneski was transported to Harborview Medical Center where he was treated for serious head injuries.
¶5 Police identified Ermels as a suspect and arrested him. They found bloody clothing and shoes in Ermels' home. Ermels confessed to having kicked Kaneski in the head. He also led police to Atkins, who eventually confessed to punching Kaneski. Sadly, Kaneski's condition deteriorated and he died a few days later.
¶6 Originally, Ermels was charged with first degree assault. The standard range sentence for first degree assault (with an offender score of zero) would have been 93 to 123 months. RCW 9.94A.510 , .515. After Kaneski died, Ermels entered into a plea agreement with the State, and the second amended information charged him with second degree manslaughter. Ermels entered an Alford «1»plea to this charge. The standard range sentence for second degree
«1» North Carolina v. Alford , 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). While there was evidence that the initial blow from the cement caused Kaneski's death, not Ermels' subsequent kicks, Ermels agreed to plead guilty to second degree manslaughter to avoid conviction for first degree assault, a crime with a higher standard range.
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manslaughter was 21 to 27 months, followed by 18 to 36 months of community custody, with a maximum term of 10 years. The prosecutor indicated that he would recommend a 10-year sentence. In his statement on the plea of guilty, Ermels explained:
I wish to plead guilty to the charge of manslaughter in the second degree to avoid the risk of conviction at trial of assault in the first degree , an offense with a longer standard range, and to take advantage of the opportunity to ask the court to sentence me within the standard range for manslaughter second degree or to a lesser sentence than the sentence that the state is requesting.
CP at 26 (emphasis added). The parties also stipulated that the facts set forth in the certification for determination of probable cause and the prosecutor's summary were "real and material facts for purposes of this sentencing." CP at 33. In his supplemental statement, attached to his plea agreement, Ermels stipulated:
2) . . . I hereby knowingly, voluntarily, and intelligently agree and stipulate that there is a basis for an exceptional sentence upward with the understanding that the State will recommend an exceptional sentence of 120 months confinement (maximum term). While I agree and stipulate there is a basis for an exceptional sentence upward, I am not agreeing to the State's recommendation regarding the confinement period;
3) . . . I further agree that there is sufficient evidence for the court to impose an exceptional sentence upward based on the following aggravating factor - a) I knew or reasonably should have known that the victim was particularly vulnerable because he was lying on the ground at the time that I assaulted him;
4) . . . I acknowledge that under In re [Personal Restraint of] Breedlove , 138 Wn.2d 298 , 979 P.2d 417 (1999), my stipulation that there is basis for an exceptional sentence as part of a plea agreement is a substantial and compelling reason that justifies such a sentence under the Sentencing Reform Act [of 1981, chapter 9.94A RCW];
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5) Pursuant to this plea agreement, I knowingly, voluntarily, and intelligently waive my right to appeal the basis for and propriety of the imposition of an exceptional sentence upward, but reserve the right to appeal the length of the sentence imposed. I understand that pursuant to this plea agreement, there is a substantial likelihood that the court will impose an exceptional sentence upward;
. . . .
CP at 31-32 (emphasis added).
¶7 The trial court imposed an exceptional sentence of 90 months (7.5 years). In his findings of fact and conclusions of law supporting the exceptional sentence, the trial judge explained that he considered the certification of determination of probable cause, the supplemental plea agreement statement, and arguments of counsel. The findings recite the facts set forth in the certification, specifically that Ermels jumped in the air, stomped on Kaneski's head, and then kicked him again. The trial court also recited the concessions made in the supplemental plea statement. The trial judge concluded that Ermels either knew or should have known that Kaneski was particularly vulnerable and that this constituted exceptional and deliberate cruelty. While he concluded that a sentence within the standard range was too lenient, he also concluded that the maximum sentence was also inappropriate.
¶8 The trial court concluded that there were four substantial and compelling reasons for imposing an exceptional sentence: Ermels knowingly, intelligently, and voluntarily agreed and stipulated that there was a basis for an exceptional sentence upward; Ermels knew or should have known that the victim was particularly vulnerable because he was lying on the ground; Ermels' actions were exceptionally and deliberately cruel; and a standard range sentence was clearly inadequate and too lenient. The trial judge also attached the certification for probable cause and Ermels' supplemental statement. The findings of fact and conclusions of law were entered in January 2004.
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¶9 The United States Supreme Court decided Blakely in June 2004. 542 U.S. 296. Ermels appealed, arguing that Blakely rendered Washington's exceptional sentencing statutes facially unconstitutional. State v. Ermels , 125 Wn. App. 195 , 199, 104 P.3d 67 (2005). He also argued that his exceptional sentence was invalid because a judge, not a jury, found the facts supporting his sentence and the court did so under the wrong standard of proof. Id. «2»The Court of Appeals concluded that Washington's exceptional sentence statutes were not rendered facially unconstitutional by Blakely . Id . Noting that Ermels explicitly waived his right to appeal the basis for and the propriety of the imposition of an exceptional sentence upward, the court concluded that Ermels could not undo that waiver, or the stipulation that an exceptional sentence was justified, without having to seek to undo the plea agreement in its entirety. Id. at 200. Additionally, the court held that Ermels was precluded from seeking appellate review of the basis for and propriety of his exceptional sentence because he did not challenge the validity of the appeal waiver. Id. «3»Ermels filed a petition for review, which this court granted. State v. Ermels , noted at 154 Wn.2d 1033 (2005).
II
Analysis
¶10 By statute, a Washington court may impose an exceptional sentence outside the standard range if it concludes that "there are substantial and compelling reasons justifying an exceptional sentence." RCW 9.94A.535 . RCW 9-
«2»As noted, Ermels does not renew this argument here. See Pet. for Review; Pet'r's Suppl. Br.
«3»Citing Brady v. United States , 397 U.S. 742, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970), the State also argued that Blakely, as a postplea change in the law, did not render Ermels' stipulation invalid and unenforceable. However, the Court of Appeals concluded that it need not reach this issue. Ermels , 125 Wn. App. at 201 . The Court of Appeals also rejected Ermels' challenge to the length of his sentence. Id. Ermels abandoned that challenge in this court.
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.94A.535 provides that whenever an exceptional sentence is imposed, the court must set forth reasons for its decision in written findings of fact and conclusions of law. A nonexclusive list of factors justifying an upward departure from a standard range sentence is set forth in RCW 9.94A.535(2) and (3) (Aggravating Circumstances); former RCW 9.94A.535 (2) (2003). At the time of Ermels' plea, an exceptional sentence above the standard range was justified if "the defendant knew or should have known that the victim . . . was particularly vulnerable or incapable of resistance due to . . . disability, or ill health." Former RCW 9.94A.535(2)(b).«4»Furthermore, this court has held that a stipulation to an exceptional sentence is enough, in and of itself, to constitute a substantial and compelling reason to justify an exceptional sentence, so long as the sentence is authorized by statute and the findings also show that the sentence is consistent with the goals of the Sentencing Reform Act of 1981, chapter 9.94A RCW. Breedlove , 138 Wn.2d at 300 .
¶11 The Sixth Amendment guarantees criminal defendants a right to trial by jury. U.S. CONST . amend. VI. In 2000, the United States Supreme Court held that "other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi v. New Jersey , 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). After Apprendi , this court held that "the factual basis for an exceptional sentence upward need not be charged, submitted to the jury, and proved beyond a reasonable doubt" because aggravating factors "neither increase the maximum sentence nor define a separate offense calling for a separate penalty." State v. Gore , 143 Wn.2d 288 , 314-15, 21 P.3d 262 (2001). In Blakely , 542 U.S. at 303, the United States Supreme Court disagreed and held that the " 'statutory maximum' " is the "maximum sentence a judge may
«4» See also RCW 9.94A.535 (3)(b) ("The defendant knew or should have known that the victim . . . was particularly vulnerable or incapable of resistance.").
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impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. " In other words, the "statutory maximum" is the maximum that a judge may impose " without any additional findings." Id . at 304.
[1]¶12 However, the Blakely Court also acknowledged that a jury need not find facts supporting an exceptional sentence when a defendant pleads guilty and stipulates to the relevant facts:
But nothing prevents a defendant from waiving his Apprendi rights. When a defendant pleads guilty, the State is free to seek judicial sentence enhancements so long as the defendant either stipulates to the relevant facts or consents to judicial factfinding. If appropriate waivers are procured, States may continue to offer judicial factfinding as a matter of course to all defendants who plead guilty.
Id. at 310 (citations omitted).
¶13 Recently, in State v. Hughes , 154 Wn.2d 118 , 110 P.3d 192 (2005), we concluded that Blakely did not render Washington's exceptional sentencing provisions facially unconstitutional. Id. at 134. Notably, none of the consolidated Hughes defendants, even the one that pleaded guilty, stipulated to the facts supporting an exceptional sentence or that there was a legal basis for an exceptional sentence. We determined that the trial court in each case had engaged in fact finding that violated the defendants' Blakely rights, and no valid factors survived to support the exceptional sentence. Id. at 137, 140, 142. In considering the question of remedy, we noted that the legislature had not yet created a procedure to empanel a jury on remand in order to find necessary facts to support an exceptional sentence. Id. at 151-52. We concluded that for this court to create such a procedure "out of whole cloth would be to usurp the power of the legislature." Id . Therefore, we remanded for resentencing within the standard range. Id. at 156. Ermels asks that we grant the Hughes remedy in his case.
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Waivers
¶14 When entering into his plea agreement, Ermels engaged in two waivers. First, when he stipulated to facts supporting his exceptional sentence and that a legal basis existed for an exceptional sentence, he necessarily relinquished any opportunity to a trial by jury on that issue. CP at 31-32. In addition, he specifically waived his right to appeal the basis for and propriety of the imposition of an exceptional sentence upward. CP at 32. Ermels argues that he could not have knowingly waived his Blakely right to have a jury determine the facts supporting his exceptional sentence beyond a reasonable doubt because Washington law at the time explicitly stated that he did not have such a right. See Gore , 143 Wn.2d at 314 -15. The State argues that Ermels' waiver of his right to appeal precludes him from appealing his exceptional sentence despite Blakely 's later change in the law.
[2]¶15 Waiver of the Blakely Right to Jury Trial : First, Ermels' petition for review does not allege that the trial court violated Blakely by relying on improper fact finding. See generally Pet. for Review at 1-2.«5»He argues that Washington's exceptional sentencing scheme is facially unconstitutional, but he does not argue that his sentence relies upon improper Blakely fact finding. Pet. for Review at 4-11. After Hughes , Ermels' surviving argument is reduced to a contention that the portions of his plea agreement acknowledging that there was a factual and legal basis for an exceptional sentence upward and waiving his right to appeal the basis for and propriety of the exceptional sentence were not knowing, intelligent, and voluntary. It is important to note that Blakely clearly applies to all cases pending on direct review and not yet final when it was decided, including this case. State v. Evans , 154 Wn.2d 438 ,
«5»While Ermels briefly argues that the trial court applied a preponderance standard, even though Blakely requires a finding of aggravating factors beyond a reasonable doubt, that argument ignores the fact that Ermels stipulated both to the underlying facts and to the legal conclusion that the facts were a sufficient basis for an exceptional sentence. Pet. for Review at 13; CP at 31-32.
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444, 114 P.3d 627 (2005). However, Ermels does not argue that his exceptional sentence relies on improper Blakely fact finding; instead he contends that the waivers set forth in the plea agreement are not valid.
[3, 4]¶16 In Breedlove , this court held that a defendant's stipulation to an exceptional sentence, made as a part of a valid plea agreement, may be considered a substantial and compelling reason that justifies imposition of an exceptional sentence. 138 Wn.2d at 300 . The sentencing court's findings must show the exceptional sentence is consistent with the purposes of the Sentencing Reform Act of 1981. Id. Yet when a defendant has stipulated to an exceptional sentence, he waives his right to appellate review of the sentence. Id. at 300, 311. Here, Ermels stipulated to the facts supporting his exceptional sentence, he stipulated that he knew or reasonably should have known that his victim was particularly vulnerable because he was lying on the ground when Ermels assaulted him, and Ermels stipulated that there was a legal basis for an exceptional sentence. CP at 31-33. Thus, while the trial court found additional aggravating factors also supported the exceptional sentence, they were not necessary given that Ermels' stipulation and Kaneski's particular vulnerability constituted substantial and compelling reasons for the exceptional sentence. See CP at 62. This court has held that not every aggravating factor must be valid to uphold an exceptional sentence, so long as this court is satisfied that the trial court would have imposed the same sentence based on the factors that are upheld. Hughes , 154 Wn.2d at 134.
¶17 Even so, some support for Ermels' position can be found in State v. Monroe , 126 Wn. App. 435 , 109 P.3d 449 (2005), review deferred, State v. Monroe , 2005 LEXIS 727 (Wash. Sept. 7, 2005) (petition for review deferred pending the outcome of State v. Borboa, No. 76547-2 and State v. Clarke , No. 76602-9), and State v. Harris, 123 Wn. App. 906 , 99 P.3d 902 (2004), overruled on other grounds by Hughes , 154 Wn.2d 118 . In both cases, the Court of Appeals held
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that the defendants could not have knowingly waived their Blakely right to a jury trial because the established rule in this state under Gore was that a defendant had no right to have a jury decide facts supporting exceptional sentences. Monroe , 126 Wn. App. at 442 . The defendants could not have waived a right that the Gore court held they did not have. Harris , 123 Wn. App. at 921 .
[5, 6]¶18 However, in both Harris and Monroe , the defendants did not stipulate that the facts constituted a basis for an exceptional sentence and exceptional sentences were not part of the plea agreements in those cases. Monroe , 126 Wn. App. at 437 -38; Harris , 123 Wn. App. at 912 -13. In fact, in both cases, the trial courts imposed exceptional sentences sua sponte. Monroe , 126 Wn. App. at 437 -38; Harris , 123 Wn. App. at 912 -13. Neither of these cases involved a plea agreement that included a stipulation to the validity of an exceptional sentence as part of the bargain. In contrast, in this case, even if we assume for the sake of argument that Ermels' waivers were not knowing, we still must take into account that Ermels agreed that there was a basis for an exceptional sentence as part of his plea bargain.
¶19 Ermels asks only that we apply the Hughes remedy and remand for imposition of a sentence within the standard range. See Pet'r's Suppl. Br. at 17-20 (arguing that Ermels need not challenge his entire plea); Hughes , 154 Wn.2d at 156 . However, Hughes governs the remedy where the exceptional sentence relies on improper Blakely fact finding. Id. at 137, 140, 142. Here, the trial court's imposition of the exceptional sentence did not violate Blakely because Ermels stipulated to both the facts supporting his exceptional sentence and that there was a legal basis for the exceptional sentence. CP at 31-32; Blakely , 542 U.S. at 310.
¶20 Ermels' limited request for remedy is fatal because it does not appear that he can challenge the validity of his exceptional sentence without challenging the validity of the entire plea. We have recognized that plea agreements often
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involve one bargain or a " 'package deal.' " State v. Turley , 149 Wn.2d 395 , 400, 69 P.3d 338 (2003); see also State v. Bisson , 156 Wn.2d 507 , 130 P.3d 820 (2006). Even where the plea agreement involves multiple counts or charges, the agreement is indivisible where the charges were made at the same time, described in one document, and accepted in a single proceeding. Turley , 149 Wn.2d at 400 . Here, Ermels pleaded guilty to a single charge and agreed that there were both factual and legal bases for an exceptional sentence on that charge. CP at 31-32. He did so in exchange for the State's agreement not to file a more serious charge with a significantly longer standard range. In fact, Ermels' exceptional sentence fell below the low end standard range for the original crime charged. Compare RCW 9.94A.510 ; .515 (93 to 123 months) with CP at 62 (90 months). Ermels does not offer objective manifestation of any intent to treat the exceptional sentence as a divisible portion of the plea agreement. Turley , 149 Wn.2d at 400 . His plea agreement is indivisible under Turley , and Ermels cannot claim that his stipulation to the factual and legal validity of an exceptional sentence is separable from the rest of his plea agreement. Ermels cannot challenge his stipulations without challenging the entire agreement.«6»
[7]¶21 Waiver of the Right to Appeal : The State argues that Ermels' waiver of his right to appeal "the basis for and propriety of the imposition of an exceptional sentence upward," CP at 32, precludes him from now challenging the knowing, intelligent, and voluntary character of his stipulation to the exceptional sentence. At the Court of Appeals, Ermels did not challenge his appeal waiver, a fact that the Court of Appeals found to be fatal. Ermels , 125 Wn. App. at 200 . The Court of Appeals also concluded that Ermels' appeal waiver was an integral part of the plea agreement, and he could not challenge its validity without seeking to withdraw the entire agreement. Id.
«6»Ermels has not challenged the validity of his entire plea. In fact, he has specifically argued that he need not do so. Pet'r's Suppl. Br. at 17-20.
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¶22 In this court Ermels claims that the appeal waiver suffers from the same infirmity as his stipulation; he argues that it was not knowing, intelligent, or voluntary because he did not realize that he was waiving his right to an appeal based on Blakely. Yet Ermels' new articulation of this argument addresses only half of the Court of Appeals' concerns. Ermels still fails to address the indivisibility problem. As the Court of Appeals noted, an integral part of Ermels' plea bargain was that he would not challenge any aspect of his sentence except for its length. Id. As a result, the State was assured that it would not have to expend resources defending the propriety of and basis for the exceptional sentence on appeal. See CP at 32. Ermels' appeal waiver is an indivisible portion of his plea agreement pursuant to the Turley factors discussed above. See Turley , 149 Wn.2d at 400 . Thus, Ermels cannot challenge the appeal waiver without challenging the validity of the entire agreement. See id .«7»
III
Conclusion
¶23 We conclude that Ermels' exceptional sentence did not depend on improper Blakely fact finding, and therefore, this case only presents an issue as to whether Ermels' plea was knowing, intelligent, and voluntary. Because the portions of his plea agreement stipulating to the facts supporting the exceptional sentence and the legal basis for the exceptional sentence are indivisible from the rest of his plea agreement, he cannot challenge the exceptional sentence without challenging the entire plea. Likewise, Ermels can
«7»For the first time in his supplemental brief, Ermels contends that his waiver of his right to appeal is ambiguous. We need not address issues raised for the first time in supplemental briefing. RAP 13.7(b). In addition, the State urges this court to adopt the reasoning set forth in Brady , 397 U.S. 742, and hold that an appeal waiver can be deemed knowing, intelligent, and voluntary despite the fact that the defendant's calculation in considering the plea agreement did not weigh a later favorable change in the law. However, because we hold that Ermels cannot challenge his stipulation or his appeal waiver without challenging his entire plea, we need not address this issue.
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not challenge the validity of his appeal waiver without challenging his entire plea. Ermels has specifically stated that he has not challenged his entire plea, and we will not reframe his argument to do so. We affirm the Court of Appeals.
ALEXANDER, C.J., and C. JOHNSON, MADSEN, SANDERS, CHAMBERS, OWENS, FAIRHURST, and J.M. JOHNSON, JJ., concur. Nos. 74268-5; 74316-9. En Banc.]
Argued May 27, 2004. Decided March 16, 2006.
THE STATE OF WASHINGTON on the Relation of the Public Disclosure Commission , Petitioner , v. WASHINGTON EDUCATION ASSOCIATION , Respondent . GARY DAVENPORT ET AL ., Individually and on Behalf of All Other Nonmembers Similarly Situated , Petitioners , v. WASHINGTON EDUCATION ASSOCIATION , Respondent .
[1] Statutes - Initiatives - Construction - In General. When interpreting legislation enacted by an initiative to the people, a court considers the voters' intent and the language of the measure as it would be interpreted by the average informed lay voter. Words are given their ordinary meaning. The measure is ambiguous if its language is fairly susceptible to more than one interpretation. Where there is an ambiguity, the intent of the electorate may be ascertained from the language of the initiative and from the official voters' pamphlet.
[2] Statutes - Construction - Legislative Intent - Difference in Language. Where different language is used in different places within a statute, it is presumed that there is a difference in intent.
[3] Labor Relations - Union Membership - Exclusive Bargaining Agent - Nonmember Participation - Agency Fees - Nonrepresentational Activities - Statutory "Opt In" Requirement - Written Authority - Necessity. Under RCW 42.17.760, which restricts a labor union from using any portion of a nonmember's agency shop fee for political purposes unless the nonmember has affirmatively authorized such use, written authorization is neither required nor intended.
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[4] Open Government - Elections - Fair Campaign Practices Act - Purpose. The purpose of the Fair Campaign Practices Act (chapter 42.17 RCW) is to protect the integrity of the election process from the perception that elected officials are improperly influenced by monetary contributions and the perception that individuals have an insignificant role to play. The intent of the statute is to protect the public, not individuals.
[5] Labor Relations - Union Membership - Exclusive Bargaining Agent - Nonmember Participation - Agency Fees - Nonrepresentational Activities - Statutory "Opt In" Requirement - What Constitutes - "Opt Out" Rebate Procedure. The "affirmative authorization" required by RCW 42.17.760 before a labor union may use any portion of a nonmember's agency shop fee for nonrepresentational political purposes is not satisfied by a labor union's procedure of providing nonmembers financial information about itself and its activities, advising nonmembers that a portion of the agency shop fees they pay will be put to nonchargeable political expenditures if no objection is raised thereto, and giving nonmembers the option of (1) paying the agency shop fee in full without objection, (2) objecting to full payment and receiving a rebate of that portion of the fee used for political expenditures as calculated by the union, or (3) objecting to full payment with the rebate determined by an impartial decision maker while the disputed amount is in escrow pending the outcome of the challenge.
[6] Statutes - Validity - Burden and Degree of Proof - In General. A party claiming that a statute is unconstitutional has the burden of overcoming the presumption of constitutionality by proving that it is unconstitutional beyond a reasonable doubt.
[7] Constitutional Law - Freedom of Association - Federal Protection. The first and fourteenth amendments to the United States Constitution protect the freedom of individuals to associate for the purpose of advancing beliefs and ideas.
[8] Constitutional Law - Freedom of Association - Scope - Support for Political Activities - Voluntary Participation. The freedom to associate as protected by the first and fourteenth amendments to the United States Constitution encompasses the freedom to contribute financially to an organization for the purpose of spreading a political message. The freedom to make financial contributions enables like-minded persons to pool their resources in furtherance of common political goals. Restrictions on expenditures in political campaigning implicate fundamental First Amendment interests.[9] Constitutional Law - Freedom of Association - Scope - Support for Political Activities - Freedom From Compulsion. The freedom to associate as protected by the first and fourteenth amendments to the United States Constitution encom
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passes the freedom not to be compelled to support political and ideological causes with which one disagrees; i.e., the freedom of association includes the converse right not to be compelled to associate. The First Amendment freedom of speech correspondingly includes the freedom not to speak or to have one's money used to advocate ideas one opposes.
[10] Labor Relations - Union Membership - Exclusive Bargaining Agent - Nonmember Participation - Agency Fees - Nonrepresentational Activities - "Opt Out" Procedure - In General. An employee who is required to pay an agency shop fee to a labor union the employee has chosen not to join has a constitutional right not to contribute to the union's nonrepresentational activities, such as political and ideological advocacy, which the employee may exercise by affirmatively objecting thereto. By objecting to the union's nonrepresentational activities, the nonmember employee asserts his or her First Amendment rights and cannot be compelled to pay more than his or her fair share of the union's chargeable expenditures. The burden is on the employee to "opt out" of the union's political activities. The obligation placed on the employee to affirmatively opt out of the union's political activities serves to protect the right of association of the union and its members who support its political causes. So long as an objecting employee is given a simple and convenient method of registering dissent, the employee is not compelled to support a political cause and does not suffer a violation of First Amendment rights.
[11] Constitutional Law - Freedom of Speech - Political Speech - Government Restriction - Validity - Test. A governmental regulation of First Amendment rights is subject to exacting judicial scrutiny. The restriction will be invalidated if the government fails to meet its burden of demonstrating that the restriction is narrowly tailored to achieve a compelling governmental interest.
[12] Constitutional Law - First Amendment - Restriction by State. The State has no greater power to restrain the individual freedoms protected by the First Amendment than does Congress.
[13] Statutes - Initiatives - Validity - Constitutional Limitations - In General. The voters may not do through an initiative what is constitutionally prohibited. Legislation is subject to the same constitutional limitations whether it is enacted by the legislature or by an initiative of the people.
[14] Constitutional Law - Construction - Federal Constitution - Greater Protection by State - Validity - Expense of Others' Rights. While a state may provide greater protection to its citizens than is provided by the federal constitution, it may not do so at the expense of the rights of other citizens.
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[15] Appeal - Assignments of Error - Argument - Authority - Absence - Effect. An appellate court may consider a precedent bearing on an argument that the proponent of the argument failed to cite.
[16] Appeal - Disposition of Cause - Basis for Decision - Issues Raised by Court - Authority. An appellate court has the inherent discretionary authority to reach issues not briefed by the parties if those issues are necessary for decision.
[17] Appeal - Disposition of Cause - Basis for Decision - Issues Raised by Court - In General. An appellate court is not constrained by the issues as framed by the parties if the parties ignore a constitutional mandate, a statutory commandment, or an established precedent.
[18] Labor Relations - Union Membership - Exclusive Bargaining Agent - Nonmember Participation - Agency Fees - Nonrepresentational Activities - "Opt Out" Procedure - Sufficiency. Where an employee is required by law to pay an agency shop fee to a labor union the employee has chosen not to join and the employee does not want to support the union's nonrepresentational political activities, a proper constitutional balance is struck by a procedure whereby the nonmember is given a reasonable opportunity to object to the use of the nonmember's agency fee for nonrepresentational political activities and is afforded the option of (1) receiving a rebate of that portion of the fee used for political expenditures as calculated by the union or (2) receiving a rebate determined by an impartial decision maker while the disputed amount is in escrow pending the outcome of the challenge.
[19] Labor Relations - Union Membership - Exclusive Bargaining Agent - Nonmember Participation - Agency Fees - Nonrepresentational Activities - Statutory "Opt In" Requirement - Validity. RCW 42.17.760 , which prevents a union from spending any portion of a nonmember's agency fees for political causes without the nonmember's affirmative authorization, is unconstitutional because it unnecessarily and significantly inhibits the First Amendment free speech and association rights of the union, its members, and those nonmembers who support the union's political activities. The affirmative authorization requirement amounts to an impermissible presumption that all nonmembers object to the union's use of their agency shop fees for political purposes, upsets the balance of members' and nonmembers' constitutional rights in the context of a union's expenditures for political activities, and impermissibly shifts to the union the burden of the dissenting nonmembers' rights. This has the practical effect of inhibiting one group's political speech (the union and supporting nonmembers) for the improper purpose of increasing the speech of another group (the dissenting nonmembers). Dissenters may not silence the majority by the creation of too heavy an administrative burden. Union members and nonmembers are entitled to at least as much protection as the First Amendment provides.
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SANDERS , J., ALEXANDER , C.J., and FAIRHURST , J., dissent by separate opinion; J.M. JOHNSON , J., did not participate in the disposition of this case.
Nature of Action: The Public Disclosure Commission sought to enforce a provision of the Fair Campaign Practices Act governing when a labor union may use agency shop fees paid by nonmembers for nonchargeable political activities, claiming that a teacher's union unlawfully applied agency fees collected from nonmembers to political expenditures without the nonmembers' affirmative authorization. In a separate action, several individual nonmembers of the union sought (1) a refund of agency fees used for political expenditures by the union, claiming a private right of action under the Fair Campaign Practices Act, and (2) damages in tort, claiming breach of fiduciary duty, conversion, and fraudulent concealment.
Superior Court: In the first action, after granting partial summary judgment in favor of the plaintiff upon a ruling that the statutory provision is constitutional and that the union is required by law to obtain affirmative authorization from nonmembers before the union may either collect or use nonmember agency fees for political expenditures, the Superior Court for Thurston County, No. 00-2-01837-9, Gary Tabor, J., on December 3, 2001, entered a judgment in favor of the plaintiff, awarding a statutory penalty, attorney fees, and costs, and permanently enjoining the union from collecting agency fees from nonmembers that are equivalent to member dues without first obtaining the nonmembers' affirmative consent. In the second action, the Superior Court for Thurston County, No. 01-2-00519-4, Daniel J. Berschauer, J., on January 18, 2002, dismissed the breach of fiduciary duty claim but denied dismissal of the other claims. The court also ruled that the Fair Campaign Practices Act provided a right of action. Further proceedings on the action were stayed by the court while the parties sought interlocutory review.Court of Appeals: In the first action, the court reversed the judgment at 117 Wn. App. 625 (2003), holding that the
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statutory "opt in" requirement, by prohibiting a union from using nonmember agency fees for political purposes unless the nonmember has first granted affirmative authorization to do so, is unconstitutional because it is unduly burdensome on unions. By an unpublished opinion noted at 117 Wn. App. 1035 (2003), the court remanded the second action for dismissal based on its invalidation of the statute in the first action.
Supreme Court: Holding that the "opt out" procedure employed by the union did not satisfy the statutory requirement but that the "opt in" procedure required by the statute is unconstitutional, the court affirms the decisions of the Court of Appeals.
Robert M. McKenna , Attorney General, Linda A. Dalton , Senior Assistant, and D. Thomas Wendel , Assistant ; and Steven T. O'Ban and Chad Allred (of Ellis Li & McKinstry, P.L.L.C. ), for petitioners.
Aimee S. Iverson (of Washington Education Association ); Judith A. Lonnquist (of Law Offices of Judith A. Lonnquist, P.S. ); and Harriet K. Strasberg , for respondent.
James D. Oswald on behalf of Washington State Labor Council, amicus curiae.
Robert H. Chanin , Donald E. Clocksin , and Richard B. Wilkof on behalf of National Education Association, amicus curiae.
Russell C. Brooks and Deborah J. La Fetra on behalf of Pacific Legal Foundation, amicus curiae.
Edward E. Younglove III on behalf of Washington Federation of State Employees, amicus curiae.
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¶1 IRELAND, J. *- In these consolidated cases, we review RCW 42.17.760 , which governs a labor union's ability to use agency shop fees, the fees paid by educational employees who are not union members. Both cases stem from an Evergreen Freedom Foundation (Evergreen) complaint with the Public Disclosure Commission (PDC) that the Washington Educational Association (WEA) violated RCW 42.17.760 (hereafter § 760).
¶2 In the first consolidated case, the trial court found that WEA had intentionally violated § 760 and assessed $590,375 in penalties and costs. The Court of Appeals reversed, holding that § 760 is unconstitutional. We affirm the Court of Appeals.
¶3 In the second consolidated case, plaintiffs contend that chapter 42.17 RCW provides them a private right of action to recover for violations of § 760. Plaintiffs also assert tort claims based on violations of § 760. The trial court agreed that § 760 provides a private right of action, but the Court of Appeals reversed because it had held § 760 unconstitutional. The Court of Appeals remanded the case for dismissal. We affirm the Court of Appeals.
FACTUAL BACKGROUND
¶4 WEA is the exclusive bargaining agent for approximately 70,000 Washington State educational employees. Membership in WEA is voluntary. However, both members and nonmembers must contribute to WEA for the costs related to collective bargaining.«1»Per statute, members pay dues to the union; nonmembers pay agency shop fees, which
*Justice Faith Ireland is serving as a justice pro tempore of the Supreme Court pursuant to Washington Constitution article IV, section 2(a).
«1»It is well settled that a union, which is obliged to act on behalf of all employees in the bargaining unit, may charge nonunion employees to bear their fair share of the costs of the representation. Air Line Pilots Ass'n v. Miller , 523 U.S. 866, 118 S. Ct. 1761, 140 L. Ed. 2d 1070 (1998). The dissent takes pains to point out that many states have passed so called "right to work laws" which have not been held unconstitutional. This argument is irrelevant to the issue in this case and inconsistent with "Washington's long and proud history of being a pioneer in the protection of employee rights." Drinkwitz v. Alliant Techsystems, Inc ., 140 Wn.2d 291 , 300, 996 P.2d 582 (2000).
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are equivalent to member dues. RCW 41.59.100 ;«2»RCW 41.56.122 .
¶5 A portion of members' dues goes to support political and ideological causes, which are unrelated to the union's collective bargaining activities on behalf of all employees. These expenses are typically called nonchargeable expenses. Nonmembers who do not wish to support these nonchargeable activities may obtain a rebate of that portion of their fees that was used for nonchargeable activities. The process by which the union rebates this amount to dissenting nonmembers was established by the United States Supreme Court in Chicago Teachers Union v. Hudson , 475 U.S. 292, 106 S. Ct. 1066, 89 L. Ed. 2d 232 (1986).
¶6 Twice each year, WEA sends a " Hudson packet" to each nonmember. The Hudson packet includes a letter notifying the employee of his or her right to object to paying fees for nonchargeable expenditures. The packet gives the nonmember three choices: (1) pay agency shop fees equivalent to 100 percent of dues; (2) object to paying 100 percent and receive a rebate of nonchargeable expenditures, as calculated by WEA; or (3) object to paying 100 percent and challenge WEA's calculations of nonchargeable expenditures. The packet also provides financial information about WEA and its activities. During the years 1996 to 2000, WEA had approximately 3,500 nonmembers per year, which is approximately 5 percent of the total number of persons represented by WEA.
¶7 When a nonmember challenges WEA's calculation of nonchargeable expenditures, an arbitrator determines the amount of the nonmember's fees that should be rebated. Pending the outcome of the arbitration, WEA escrows any fees that are reasonably in dispute. The WEA rebates to the employee the amount determined by the arbitrator, and transfers the remainder to the WEA general account. Dur
«2»RCW 41.59.100 provides, in part: "If an agency shop provision is agreed to, the employer shall enforce it by deducting from the salary payments to members of the bargaining unit the dues required of membership in the bargaining representative, or, for nonmembers thereof, a fee equivalent to such dues."
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ing the years 1996 to 2000 the rebates ranged from $44 to $76. Clerk's Papers (CP) at 839. Nonmembers who did not object and did not request rebates did not receive rebates. Their fees were transferred from escrow to WEA's general account. Political expenditures were made from this account pursuant to a 1996 agreement with the PDC. At issue are the fees paid by the nonobjecting nonmembers.
PROCEDURAL BACKGROUND
¶8 This is the latest in a series of actions by Evergreen against WEA. These cases include State ex rel. Evergreen Freedom Foundation v. Washington Education Ass'n , 140 Wn.2d 615 , 999 P.2d 602 (2000) and State ex rel. Evergreen Freedom Foundation v. Washington Education Ass'n , 111 Wn. App. 586 , 49 P.3d 894 (2002).
¶9 The current action began in August 2000, when Evergreen filed a complaint with the PDC, alleging that WEA had violated § 760. The complaint asserted that WEA failed to get the affirmative authorization of all nonmembers before using the nonmembers' fees for political purposes, as required by the statute. In order to avoid yet another lawsuit, WEA entered into a stipulation with the PDC. In that stipulation, WEA acknowledged that it had violated § 760 during the 1999-2000 fiscal year. The PDC referred the case to the attorney general for prosecution.
¶10 The State filed suit against WEA in October 2000, alleging WEA had violated § 760 during the previous five years, 1996 to 2000. Both parties moved for summary judgment. The trial court granted the PDC's motion for partial summary judgment, ruling § 760 is constitutional and it "requires affirmative authorization from agency fee payers . . . and defendant's Hudson procedures do not satisfy this requirement." CP at 349-50. The court ruled that it was a question of fact whether WEA had "used" those agency fees for political purposes. The case proceeded to a bench trial on the issue of whether the WEA had "used" for political purposes the fees of nonmembers who had failed to
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object by completing and returning the form contained in the Hudson packet.
¶11 At trial, three experts testified concerning WEA's accounting procedures and whether WEA had used the fees of the nonobjecting nonmembers. Two of the three experts, including the parties' jointly retained expert, testified that WEA had not used the fees of the nonobjecting nonmembers for political expenditures.
¶12 However, the trial court concluded that WEA had used those fees. The court assessed a sanction of $200,000, calculated by multiplying $25 by the approximately 4,000 nonmembers who had failed to respond to the Hudson packet. The court then doubled the fine to $400,000, as allowed by RCW 42.17.400 (5). The court awarded the PDC costs and fees of $190,375 for a total judgment against WEA of $590,375. The trial court also issued a permanent injunction, precluding WEA from collecting the full amount of agency fees mandated by RCW 41.59.100 and requiring WEA to institute new procedures for segregating the amounts collected from members and the amounts collected from nonmembers.
¶13 WEA appealed. On appeal, Division Two of the Court of Appeals held § 760 unconstitutional because its "affirmative authorization requirement unduly burdens unions." State ex rel. Pub. Disclosure Comm'n v. Wash. Educ. Ass'n , 117 Wn. App. 625 , 640, 71 P.3d 244 (2003). The State sought review in this court.
¶14 The other consolidated case arose in March 2001, when several educational employees, Gary Davenport, Martha Lofgren, Walt Pierson, Susannah Simpson, and Tracy Wolcott (collectively Davenport), who are not members of the union, filed a class action against WEA on behalf of present or former public school employees. Davenport claims a private right of action under the public disclosure act (PDA). Davenport seeks a refund of that portion of agency shop fees used for political expenditures. Davenport also alleges tort claims for breach of fiduciary duty, conversion, and fraudulent concealment. The trial court dismissed
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the breach of fiduciary duty claim but denied dismissal of the other claims. In addition, the trial court ruled that § 760 provides a private right of action. The trial court then stayed further proceedings while the parties sought interlocutory appeal. The Court of Appeals granted review. After holding § 760 unconstitutional in the consolidated case, the Court of Appeals remanded the Davenport case to the trial court for dismissal. Davenport petitioned for review in this court.
¶15 This court granted the State's and Davenport's petitions for review and consolidated the two cases. We affirm the Court of Appeals.
ISSUES
¶16 1. Does WEA's Hudson process satisfy § 760's requirement of affirmative authorization?
¶17 2. Does the requirement of affirmative authorization render § 760 unconstitutional?
¶18 3. Does chapter 42.17 RCW create a private right of action?
ANALYSIS
1. Does WEA's Hudson process satisfy § 760's requirement of affirmative authorization?
¶19 Enacted in 1992 as part of Initiative 134 (I-134), the Fair Campaign Practices Act, § 760 restricts the ability of unions to use for political purposes the agency fees paid by employees who have not joined the union. LAWS OF 1993, ch. 2, §§ 1-36. § 760 provides:
A labor organization may not use agency shop fees paid by an individual who is not a member of the organization to make contributions or expenditures to influence an election or to operate a political committee, unless affirmatively authorized by the individual.
WEA argues that the Hudson process satisfies the requirement of affirmative authorization because it provides each
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individual nonmember the opportunity to object, to obtain a refund, and to prevent fees from being used by WEA, even temporarily, for political purposes. The State contends that the plain language of the statute makes clear that each individual nonmember must provide actual consent and that failure to respond to the Hudson packet does not constitute consent.
¶20 Prior to this suit, no court had construed the affirmative authorization requirement of § 760. The PDC, the agency charged with implementing the PDA, had not issued any regulations interpreting § 760 or brought any enforcement actions concerning § 760. In addition, despite several requests that the PDC provide guidance to labor organizations on how to comply with § 760's affirmative authorization requirement, the PDC had not given any direction.
[1]¶21 In interpreting an initiative, the court looks at the voters' intent and the language of the initiative as the average informed lay voter would interpret it. In re Estate of Hitchman , 100 Wn.2d 464 , 467, 670 P.2d 655 (1983). Words are given their ordinary meaning. Wash. State Coal. for the Homeless v. Dep't of Soc. & Health Servs. , 133 Wn.2d 894 , 905, 949 P.2d 1291 (1997). If the language used is fairly susceptible to more than one interpretation, the statute is ambiguous. Sacred Heart Med. Ctr. v. Dep't of Revenue , 88 Wn. App. 632 , 636, 946 P.2d 409 (1997). If the statute is ambiguous, the intent of the electorate may be ascertained from the language of the initiative as well as the official voters pamphlet. State v. Thorne , 129 Wn.2d 736 , 763, 921 P.2d 514 (1996).
[2-5]¶22 Because § 760 does not define "affirmative authorization," it is unclear whether the Hudson process satisfies the authorization requirement. The plain language seems to indicate a nonmember must provide an expression of positive authorization. Failure to respond to the Hudson packet may be considered acquiescence, but it would not fulfill the affirmative authorization requirement. The difference is that affirmative authorization seems to indicate
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that the member must say "yes," instead of failing to say "no."
¶23 In this case, the language of the voters pamphlet does not assist us because it also fails to clarify the term "affirmative authorization" and fails to identify what type of authorization was intended. Indeed, the voters pamphlet describes the requirement as "individual authorization," not "affirmative authorization."
¶24 The State admits that § 760 does not require written authorization. We agree, otherwise the statute would have so stated. Where written authorization is required in the chapter, the statute specifies written authorization. Compare the language of § 760, which forbids the use of nonmember fees in support of political activities "unless affirmatively authorized by the individual," to the language of RCW 42.17.680 (3), which forbids deducting "a portion of an employee's wages or salaries for contributions to political committees or for use as political contributions except upon written request of the employee." RCW 42.17.680 (3) (emphasis added). Where different language is used in different places within a statute, it is presumed there is a difference in intent. State v. Roberts , 117 Wn.2d 576 , 586, 817 P.2d 855 (1991). Therefore, not only does § 760 not require written authorization, we presume that written authorization is not what is intended.
¶25 At oral argument, the State was unable to specify what form of authorization would satisfy the requirement of affirmative authorization, except to say that the Hudson process was not sufficient. The State asserts that the voters intended to provide to nonmembers more protection of First Amendment rights than is provided under the Hudson process approved by the Supreme Court. However, the State has failed to provide any evidence of such intent. The single line in the voters pamphlet concerning the agency shop fees provision does not mention either the constitution or the protection of the nonmember. The voters pamphlet's only reference to the current § 760 is the comment that under I-134, "agency shop fees could not be used for
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political purposes without individual authorization." This bare description does not indicate what form the authorization should take or whether the Hudson process satisfies the requirement of affirmative authorization.
¶26 We have previously discussed the intent of the voters in passing I-134. For example, we declared that "[t]he intent of the people of this State in enacting Initiative 134 can be determined from the declarations in RCW 42.17.610 and .620." Evergreen Freedom Found. , 140 Wn.2d at 637 . Those declarations of intent indicate that the principal thrust of I-134 was to protect the integrity of the election process from the perception that elected officials are improperly influenced by monetary contributions and the perception that individuals have an insignificant role to play. Wash. State Republican Party v. Wash. State Pub. Disclosure Comm'n , 141 Wn.2d 245 , 293, 4 P.3d 808 (2000) (Talmadge, J., dissenting). Thus, the intent of the statute is to protect the public, not individual employees. Crisman v. Pierce County Fire Prot. Dist. No. 21 , 115 Wn. App. 16 , 23, 60 P.3d 652 (2002). The requirement of individual authorization does not advance this intent any more than the Hudson process.
¶27 Where a statute is ambiguous and this court is able to construe it in a manner which renders it constitutional, the court is obliged to do so. State v. Dixon , 78 Wn.2d 796 , 804, 479 P.2d 931 (1971). However, having construed the statute as requiring more than a nonresponse to a Hudson packet, we must next examine the constitutionality of § 760.
2. Does the requirement of affirmative authorization render § 760 unconstitutional?
[6]¶28 A party challenging the constitutionality of a statute bears the burden of establishing its unconstitutionality beyond a reasonable doubt. State ex rel. Heavey v. Murphy , 138 Wn.2d 800 , 808, 982 P.2d 611 (1999). A statute is presumed constitutional, and all doubts are resolved in favor of constitutionality. Dixon , 78 Wn.2d at 804 .
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[7]¶29 The first and fourteenth amendments to the United States Constitution protect the freedom of an individual to associate for the purpose of advancing beliefs and ideas. Abood v. Detroit Bd. of Educ. , 431 U.S. 209, 233, 97 S. Ct. 1782, 52 L. Ed. 2d 261 (1977); Elrod v. Burns , 427 U.S. 347, 355-57, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976). The practice of persons banding together to make their political voices heard is deeply embedded in the American political process. Citizens Against Rent Control v. City of Berkeley , 454 U.S. 290, 294, 102 S. Ct. 434, 70 L. Ed. 2d 492 (1981). "Its value is that by collective effort individuals can make their views known, when, individually, their voices would be faint or lost." Id.
[8]¶30 The freedom to associate encompasses the freedom to contribute financially to an organization for the purpose of spreading a political message. Id. at 296. "Making a contribution . . . enables like-minded persons to pool their resources in furtherance of common political goals." Buckley v. Valeo , 424 U.S. 1, 22, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976). Restrictions on expenditures in political campaigning "implicate fundamental First Amendment interests." Id. at 23; see also Wash. State Republican Party, 141 Wn.2d at 256 .
[9]¶31 On the other hand, equally protected is a person's right not to be compelled to support political and ideological causes with which he or she disagrees. Hurley v. Irish-American Gay, Lesbian, & Bisexual Group, 515 U.S. 557, 115 S. Ct. 2338, 132 L. Ed. 2d 487 (1995). The freedom of association includes the converse right not to be compelled to associate. Good v. Associated Students of Univ. of Wash., 86 Wn.2d 94 , 100, 542 P.2d 762 (1975). Freedom of speech includes the freedom not to speak or to have one's money used to advocate ideas one opposes. Keller v. State Bar of Calif. , 496 U.S. 1, 110 S. Ct. 2228, 110 L. Ed. 2d 1 (1990). "[A]t the heart of the First Amendment is the notion that an individual should be free to believe as he will, and that in a free society one's beliefs should be shaped by his mind and his conscience rather than coerced by the State." Abood , 431 U.S. at 234-35.
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[10]¶32 In a series of cases, the United States Supreme Court has addressed these competing rights - the right to freely associate for the purpose of political speech and the right to be free from forced association - in the context of the political speech of labor organizations. The result is an approach which strikes a balance between those who disagree with the labor organization's political activities and those who support the political activities. The approach accommodates the dissenting nonmember by providing an easy and prompt method of registering his or her objection and recouping any portion of fees which might otherwise be used by the union for political purposes. At the same time, the approach crafted by the Court makes it simple for one who supports the political causes of the union, whether member or nonmember, to assert his or her right of association.
¶33 In International Association of Machinists v. Street , 367 U.S. 740, 749, 81 S. Ct. 1784, 6 L. Ed. 2d 1141 (1961), the Court considered whether a union "receiving an employee's money should be free, despite that employee's objection, to spend his money for political causes which he opposes." The Court recognized the government's interest in supporting the important role unions play in preserving workplace harmony. Compulsory dues or fees to the union were justified by the union's obligation to represent all employees, whether members or not, as well as the union's desire to avoid free-riders. Therefore, the Court affirmed the union's right to collect fees from all employees who benefit from the union's collective bargaining activities.
¶34 The Court held, however, that compulsory union dues may not be used to support political causes if the member disagrees with those causes. On the other hand, "the majority also has an interest in stating its views without being silenced by the dissenters." Id. at 773.
¶35 The Court stated that the appropriate remedy must reconcile the majority and dissenting interests in the area of political expression, protecting both interests "to the maximum extent possible without undue impingement of
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one on the other" and taking into account the administrative difficulty of accommodating each group. Id. Any remedies, however, would properly be granted only to those employees who had made known to the union that they did not desire their funds to be used for political causes to which they object. "[D]issent is not to be presumed - it must affirmatively be made known to the union by the dissenting employee." Id. at 774.
¶36 In Abood , the Court affirmed that the principles of Street applied to public employees represented by a collective bargaining agency. The Court held that the union was allowed to use members' dues for purposes other than collective bargaining, provided the money did not come from employees who objected to the causes supported. Abood, 431 U.S. at 222. "[T]he Constitution requires only that such expenditures be financed from charges, dues, or assessments paid by employees who do not object to advancing those ideas and who are not coerced into doing so against their will by the threat of loss of governmental employment." Id. at 235-36. The Court affirmed that the burden is on the employee to make his objection known.
¶37 Then in Hudson and Ellis ,«3»while once again affirming that the burden is on the employee to register his dissent to the union's political activities, the Court outlined the procedures that are constitutionally required to safeguard the First Amendment rights of that dissenting employee. An employee who is given a simple and convenient method of registering dissent has not been compelled to support a political cause and has not suffered a violation of his or her First Amendment rights.«4»
«3» Ellis v. Bhd. of Ry., Airline & S.S. Clerks , 466 U.S. 435, 104 S. Ct. 1883, 80 L. Ed. 2d 428 (1984).
«4»Neither party has provided an analysis or argument to show why, in this context, the state constitutional provision protecting the rights of free speech and association should be construed more broadly than the federal provision. Therefore, we interpret the state constitutional clause coextensively with its parallel federal counterpart. Nelson v. McClatchy Newspapers, Inc ., 131 Wn.2d 523 , 538, 936 P.2d 1123 (1997).
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[11]¶38 With these principles in mind, we consider the constitutionality of the restriction imposed by § 760 on the political speech of the union, its members, and its nonmembers. Regulation of First Amendment rights is always subject to exacting judicial scrutiny. Citizens Against Rent Control , 454 U.S. at 294. The State bears the burden of demonstrating that the restriction is narrowly tailored to achieve a compelling governmental interest. State ex rel. Pub. Disclosure Comm'n v. 119 Vote No! Comm. , 135 Wn.2d 618 , 624, 957 P.2d 691 (1998). "Such burdens are rarely met." Id.
[12-19]¶39 Under § 760, the union is prevented from spending any portion of a nonmember's agency fees for political causes without the affirmative authorization of the nonmember. The WEA contends, and a majority at the Court of Appeals agreed, that the statute is unconstitutional because its requirement of affirmative authorization amounts to an impermissible presumption that each nonmember objects to the union's use of his or her fees for political activities. The State argues that although the Supreme Court has placed the burden on the dissenting nonmember to assert his or her First Amendment rights, it is nevertheless constitutionally permissible for § 760 to shift the burden to the union to protect the First Amendment rights of dissenting nonmembers. The Court of Appeals held that by presuming the dissent of nonmembers, § 760 upsets the balance of members' and nonmembers' constitutional rights in the context of a union's expenditures for political activities. Section 760 impermissibly shifts to the union the burden of the nonmembers' rights. This has the practical effect of inhibiting one group's political speech (the union and supporting nonmembers) for the improper purpose of increasing the speech of another group (the dissenting nonmembers).
¶40 A presumption of dissent violates the First Amendment rights of both members and nonmembers. The State argues that § 760 has no impact on the First Amendment rights of members because § 760 only requires the affirma
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tive authorization of nonmembers. However, this argument denies the obvious, significant expense involved in complying with § 760. It is disingenuous to argue that § 760 has no impact on members' ability to assert their collective political voice. Campaign finance legislation can create insurmountable organizational and financial hurdles for organizations attempting to engage in political speech, rendering the legislation unconstitutional. Fed. Election Comm'n v. Mass. Citizens for Life, Inc. , 479 U.S. 238, 254-55, 107 S. Ct. 616, 93 L. Ed. 2d 539 (1986). The weight of the administrative burden on the union is an important consideration in resolving the balance of member and nonmember First Amendment rights. See, e.g. , Waters v. Churchill , 511 U.S. 661, 671, 114 S. Ct. 1878, 128 L. Ed. 2d 686 (1994) (court should consider the cost of procedural safeguards on First Amendment rights); Grunwald v. San Bernardino City Unified Sch. Dist. , 994 F.2d 1370 (9th Cir. 1993) (requirements of accommodating dissenting nonmembers must be practical). Dissenters may not silence the majority by the creation of too heavy an administrative burden.
¶41 In this case, WEA presented evidence that the procedures required by the State's interpretation of § 760 would be extremely costly and would have a significant impact on the union's political activities. See Report of Proceedings at 175-76, 187, 203, 208. The State concedes that written permission is not required. But even without a written permission requirement, the State's position would require individual contact with each nonmember who did not respond to the Hudson packet. Therefore, we reject the State's argument that transferring the burden from the dissenting nonmember to the union would have no impact on the union's ability to assert its political voice.
¶42 A presumption of dissent violates the First Amendment rights of nonmembers as well. A presumption of dissent fails to respect the nonmember's First Amendment rights as "running both ways." Wagner v. Prof'l Eng'rs in Calif. Gov't , 354 F.3d 1036, 1043 (9th Cir. 2004). It assumes that because an employee has not joined the union, he or she disagrees with the union's political expenditures. How
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ever, there are numerous and varied reasons why employees choose not to join a union. Leer v. Wash. Educ. Ass'n, 172 F.R.D. 439, 446-47 (W.D. Wash. 1997) (nonmembers do not have unanimity of purpose). Employees may choose to remain nonmembers for many reasons unrelated to political expression. For those nonmembers who agree with the union's political expenditures, § 760's presumption of dissent presents an unconstitutional burden on their right to associate themselves with the union on political issues. We are bound to provide at least as much protection to the union's members and nonmembers as that provided by the First Amendment: " '[S]tates have no greater power to restrain the individual freedoms protected by the First Amendment than does the Congress.' " Wash. State Republican Party , 141 Wn.2d at 264 (quoting Wallace v. Jaffree , 472 U.S. 38, 48-49, 105 S. Ct. 2479, 86 L. Ed. 2d 29 (1985)).
¶43 Nevertheless, the State argues that we need not adhere to the balance of First Amendment rights as articulated in Street , Abood , and their progeny.«5»The State argues that those cases are different because they do not involve a state statute that expressly calls for affirmative authorization of nonmembers. The State also places great emphasis on the fact that § 760 was enacted by the citizens of Washington. However, the voters cannot do through initiative what is constitutionally prohibited. Amalgamated Transit Union Local 587 v. State , 142 Wn.2d 183 , 204, 11 P.3d 762 (2000). In reviewing the constitutionality of a statute, it is irrelevant that a statute is enacted by the voters rather than a legislative body. Id.
¶44 Moreover, while our state may provide greater protection to its citizens, such as dissenting nonmembers, than
«5»Similarly, the dissent asserts that balancing members' and nonmembers' rights is a "false" requirement created by the majority, rather than an approach created by the Supreme Court. On the contrary, as other courts have recognized, "the balance of interests underlying all of the Supreme Court's pronouncements on the subject of agency shop fees" must be applied when determining the use of those fees for political purposes. Weaver v. Univ. of Cincinnati , 970 F.2d 1523, 1533 (6th Cir. 1992); see e.g ., Mich. State AFL-CIO v. Miller , 103 F.3d 1240, 1253 (6th Cir. 1997) (union's process must strike "a balance between the right to solicit political contributions and the co-equal right not to contribute").
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is provided by the federal constitution, it cannot do so at the expense of the rights of other citizens, such as members and supporting nonmembers. The State's argument transfers the burden of asserting First Amendment rights from the dissenting nonmembers and places it on the supporting nonmembers and the union. Increased protection for nonmembers, as asserted by the State, tips the scales of First Amendment rights in favor of the dissenting nonmember, while increasing the burden on the nonmember who supports the union's political causes and also on the union, which must bear the administrative costs. "[T]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment." Buckley, 424 U.S. at 48-49.
¶45 In addition, there is no indication that in voting for I-134, the voters intended to provide more protection for nonmembers than that offered under federal constitutional principles. Rather, as we have previously stated, the principal thrust of I-134 was to protect the integrity of the election process from the perception that elected officials are improperly influenced by monetary contributions and the perception that individuals have an insignificant role to play. Wash. State Republican Party , 141 Wn.2d at 293 . The intent of the statute was to protect the public, not individual employees. Crisman, 115 Wn. App. at 23 (the wording and history of chapter 42.17 RCW indicate that its goal is to protect the public); see also Nelson v. McClatchy Newspapers, Inc ., 131 Wn.2d 523 , 532, 936 P.2d 1123 (1997) ("Initiative 134 . . . was aimed at repairing the political process.").
¶46 The Ninth Circuit engaged in a similar analysis in Mitchell v. Los Angeles Unified School District , 963 F.2d 258 (9th Cir.), cert. denied , 506 U.S. 940 (1992). In Mitchell , plaintiffs were nonmembers who, like the nonmembers here, failed to object to the union's use of a portion of agency shop fees for nonchargeable expenditures. The district court issued an injunction, requiring the union to obtain the
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affirmative consent of each individual nonmember before using that nonmember's fees for political purposes.
¶47 The Ninth Circuit reversed, holding that requiring an opt-in system "would unduly impede the union in order to protect 'the relatively rare species' of employee who is unwilling to respond to the union's notifications but nevertheless has serious disagreements with the union's support of its political and ideological causes." Id. at 263. The court held it would be an unconstitutional burden to require all those who agree with the union's political activities to affirmatively consent. Id . The Mitchell court quoted the United States Supreme Court's statement in Street , that the union should not be sanctioned in favor of an employee who makes no complaint regarding the use of his or her money. Id. at 260. In addition, the court quoted from a California Supreme Court decision that reached the same conclusion in a similar case: "[E]ach nonmember has a right to prevent the use of his or her service fee for purposes beyond the union's representational obligations. Since . . . that additional right is an aspect of the right of an employee to refuse to participate in a union's activities . . . , it must be affirmatively asserted or else it is waived." Id. at 262 (quoting Cumero v. Pub. Employment Relations Bd. , 49 Cal. 3d 575, 590, 778 P.2d 174, 262 Cal. Rptr. 46 (1989)).
¶48 Likewise, the Sixth Circuit held that the Supreme Court has set out a "hierarchy of interests," which places the burden on the nonmember to make his objection known. Weaver v. Univ. of Cincinnati , 970 F.2d 1523, 1532 (6th Cir. 1992), cert. denied , 507 U.S. 917 (1993). The Weaver court stated that "[a]n 'opt-in' procedure would greatly burden unions while offering only a modicum of control to nonunion employees whose procedural rights have already been safeguarded by Hudson ." Id. at 1533. An opt-in provision impermissibly shifts the balance of interests underlying all of the Supreme Court's pronouncements. Id.
¶49 The dissent incorrectly states that the Sixth Circuit has explicitly affirmed the constitutionality of an opt-in statute similar to § 760. Dissent at 577 (citing Mich. State
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AFL-CIO v. Miller , 103 F.3d 1240 (6th Cir. 1997)). However, the statute at issue in Miller is not similar to § 760. Washington's counterpart to the Michigan statute at issue in Miller is RCW 42.17.680 (3), which we construed in one of Evergreen's previous suits against WEA. See State ex rel. Evergreen Freedom Found. v. Wash. Educ. Ass'n , 140 Wn.2d 615 , 999 P.2d 602 (2000). The provision at issue in Miller was the Michigan statute's prohibition of reverse checkoff, a collection system that automatically deducts contributions from a member's paycheck without his or her prior approval. Like the Michigan statute at issue in Miller , RCW 42.17.680 (3) restricts the ability of various groups, including corporations and labor groups, from making direct deductions from an employee's wages. Miller did not involve a statute like § 760, and Miller is inapplicable to this case.«6»
¶50 The United States Supreme Court has held that a union has the right to use nondissenting nonmember fees for political purposes. Abood , 431 U.S. at 240 (quoting Bhd. of Ry. & S.S. Clerks v. Allen , 373 U.S. 113, 122, 83 S. Ct. 1158, 10 L. Ed. 2d 235 (1963)). The State has failed to even attempt to justify § 760, which it is required to do when regulating First Amendment rights. In fact, a restriction on the First Amendment rights of WEA must be justified by a compelling governmental interest. Here, the only interest asserted is additional protection for nonmembers' First Amendment rights. However, there is no indication or
«6»The dissent sees no distinction between Miller and the current case. However, use of agency shop fees was not at issue in Miller and Michigan does not have a statute that specifically applies only to agency shop fees. Furthermore, we note that the primary issue in Miller concerned applying to unions the statutory restrictions against reverse checkoff, which were already applied to corporations, nonprofits, and other groups. The Miller court held that the Michigan statute "applies evenhandedly" to unions, corporations, and other entities. Miller , 103 F.3d at 1251. The parties have not raised, and we do not address, any argument concerning § 760's application solely to labor organizations while nonprofit, corporate, and other groups are not similarly subject to affirmative authorization requirements. See Austin v. Mich. Chamber of Commerce , 494 U.S. 652, 110 S. Ct. 1391, 108 L. Ed. 2d 652 (1990) (statute that restricts corporate political expenditures, but not labor organization's political expenditures, was justified, in part, by ability of fee payer to avoid paying for political activities of a labor organization whereas shareholders cannot dissociate themselves from corporation's political activities).
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argument that WEA is compelling nonmembers to support political activities or preventing nonmembers from asserting their First Amendment rights.
¶51 The Supreme Court has indicated that a nonmember has a right to be free from compelled support of a political cause the nonmember does not agree with. As the Supreme Court has held, there is no compelled support if the union utilizes the Hudson procedures. Given that there is no compelled support, it does not appear that there is any governmental interference with First Amendment rights of nonmembers for § 760 to protect against. Certainly the State has not provided any evidence of a compelling governmental interest that justifies the restriction on WEA from using the fees of the nondissenting nonmembers.
¶52 Judge J. Robin Hunt in her dissent at the Court of Appeals opines that while "opt-in" procedures have not been found to be constitutionally required, the procedure is not constitutionally infirm. State ex rel. Pub. Disclosure Comm'n v. Wash. Educ. Ass'n , 117 Wn. App. 625 , 644, 71 P.3d 244 (2003) (Hunt, J., concurring in part, dissenting in part). She argues that the cases we cite, Street, Abood, Mitchell, and others, create a constitutional floor, but not a ceiling. Even if this argument were accepted, when the State acts in a way that affects the associational and free-speech rights of individuals, in addition to having a compelling reason, its legislation must be narrowly tailored. Section 760 is not narrowly tailored especially when examined in light of recent United State Supreme Court authority.
¶53 In Boy Scouts of America v. Dale , 530 U.S. 640, 120 S. Ct. 2446, 147 L. Ed. 2d 554 (2000), the United States Supreme Court set forth the test for determining whether a government regulation improperly violates a group's right of expressive association. Because § 760 regulates the relationship between the union and agency fee payers with regard to political activity, the Boy Scouts analysis should be applied here. Under the Boy Scouts test, we must evaluate whether § 760's opt-in provision would significantly burden the union's expressive activity. Boy Scouts ,
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530 U.S. at 653. If so, then we must analyze whether § 760's opt-in provision is narrowly tailored to support a compelling state interest that is unrelated to the suppression of free speech. Id. at 648. We conclude that the union's expressive activity is significantly burdened by § 760's opt-in requirement. We also conclude that any compelling state interest in protecting dissenters' rights could be met by less restrictive means other than the § 760 opt-in procedure. The union's Hudson procedures amount to a constitutionally permissible alternative that adequately protects both the union and dissenters. Because § 760 is not narrowly tailored, we hold that the statute is unconstitutional.
¶54 The dissent complains that the narrowly tailored issue was not argued or briefed and that we should not rely on Boy Scouts. However, this is specifically argued in Respondent WEA's brief to this court. Resp't Br. at 14. That the Boy Scouts of America v. Dale case was not cited does not preclude this court from considering this important case. " 'This court has the inherent discretionary authority to reach issues not briefed by the parties if those issues are necessary for decision.' " Blaney v. Int'l Ass'n of Machinists & Aerospace Workers , 151 Wn.2d 203 , 213, 87 P.3d 757 (2004) (quoting City of Seattle v. McCready , 123 Wn.2d 260 , 269, 868 P.2d 134 (1994)). Moreover, "[T]his court has frequently recognized it is not constrained by the issues as framed by the parties if the parties ignore a constitutional mandate, a statutory commandment, or an established precedent." McCready , 123 Wn.2d at 269 .
¶55 In 2000, the United States Supreme Court analyzed whether application of New Jersey's public accommodation law to require the Boy Scouts to admit James Dale, a homosexual gay rights activist, violated the Boy Scouts' First Amendment right of expressive association. Boy Scouts , 530 U.S. at 643, 647. The Court noted that government actions that unconstitutionally burden a group's right of expressive association "may take many forms," one of which was forcing a group to accept certain unwanted
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members. Id. at 648. The Court then applied a multistep analysis and concluded (1) that the Boy Scouts engaged in expressive activity, (2) that forced inclusion of Dale would significantly burden the Boy Scouts' expression, and (3) that application of New Jersey's public accommodations law in that case ran afoul of the Boy Scouts' constitutional freedom of expressive association. Id. at 656.
¶56 While this case involves regulation of the use of agency shop fees, rather than regulation of the group's membership, the essence of § 760 is state regulation of the relationship between the union and agency fee payers with regard to political speech.
¶57 Under Boy Scouts , in order to determine whether § 760 violates the union's freedom of expressive association, we must first determine whether the union engages in expressive activity. Boy Scouts , 530 U.S. at 656. It is clear from the record that the WEA engages in political and ideological activities not related to collective bargaining or contract administration. Moreover, § 760 specifically regulates the expenditure of agency shop fees "to influence an election or to operate a political committee." Thus, it seems indisputable that the union engages in expressive activity and § 760 regulates the union's expressive association with agency fee payers. See Boy Scouts , 530 U.S. at 650.
¶58 We must next determine whether the § 760 opt-in requirement significantly burdens the union's ability to express its viewpoint. The Boy Scouts Court emphasized that courts "must also give deference to an association's view of what would impair its expression." Boy Scouts , 530 U.S. at 653.
¶59 RCW 41.59.060 (2) provides that if an agency shop agreement becomes effective, a fee that is equivalent to union dues will be deducted from the salary of employees in the bargaining unit. See also RCW 41.59.100 (providing for limited exceptions not at issue here). Thus, under the agency shop provisions, the union is entitled to collect a fee equivalent to 100 percent of union dues from nonmembers in the bargaining unit. RCW 41.59.100 .
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¶60 Section 760 then encumbers the use of such funds by prohibiting their expenditure for political speech absent affirmative authorization by the agency fee paying nonmember. Notably, the statute acknowledges that the fees are in the union's possession but places restrictions upon the use of the union's funds for political speech. RCW 42.17.760 .
¶61 The union's Hudson procedures protect dissenters' rights not to participate in the union's political speech. Twice a year, the union mailed a Hudson packet to agency fee payers. The packet contained detailed information about the union's expenditures and the right to object to nonchargeable expenditures. The packet offered three options. A nonmember could: (1) pay agency shop fees equal to 100 percent of union dues; (2) pay agency shop fees, but object to WEA's political expenditures and receive a rebate of nonchargeable expenditures as calculated by the union; or (3) object to the WEA's political expenditures and challenge the WEA's calculation of nonchargeable expenditures before an impartial arbitrator. Section 760 significantly changes this process by requiring the union to forgo the use of the portion of agency fees that would go toward political expenditures unless the nonmember affirmatively authorizes use for political purposes, rather than allowing the union to use that portion of the agency fee for political speech absent objection.
¶62 The union contends that § 760's affirmative authorization requirement significantly burdens its expressive association with nonobjecting agency fee payers. At trial, a union expert testified that it would double the complexity of the dues collection system if fee payers were to pay a different amount than members. The union's additional efforts to attain affirmative authorization would impose further administrative burden. Even if the union were to hold the amount allocated to political activity in escrow while seeking affirmative authorization, the lack of access to those funds could impact the timeliness of the union's political speech. Given the Boy Scouts requirement that we
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give deference to the union's view of what would impair its political expression and given the long recognized, highly protected nature of political speech, we conclude that § 760 significantly burdens the union's right of expressive association. See Boy Scouts , 530 U.S. at 653; see also Meyer v. Grant , 486 U.S. 414, 425, 108 S. Ct. 1886, 100 L. Ed. 2d 425 (1988) (political speech is at the core of the First Amendment freedom).
¶63 Finally, we must consider whether § 760 is narrowly tailored to support a compelling government interest that is unrelated to suppression. Boy Scouts , 530 U.S. at 648. The protection of dissenters' First Amendment rights is a compelling interest and this interest is not rooted in a desire to suppress the union's political speech for suppression's sake. However, the federal case law previously extensively cited reveals that § 760's opt-in provision is not narrowly tailored to protect this interest. Hudson , 475 U.S. 292; Abood , 431 U.S. 209; Street , 367 U.S. 740; Weaver , 970 F.2d 1523; Mitchell , 963 F.2d 258. As noted previously, the United States Supreme Court and other federal courts have concluded that a constitutionally acceptable alternative is the opt-out system previously implemented by the union. See, e.g ., Street , 367 U.S. at 774; Abood , 431 U.S. at 235-36; Mitchell , 963 F.2d at 262-63. Even if these cases do not contain a constitutionally based prohibition against opt-in systems, they do reveal a less restrictive alternative means for protecting dissenters' rights. Under the Boy Scouts analysis, § 760 significantly burdens the union's expressive association, requiring the statute to survive strict scrutiny. See Boy Scouts , 530 U.S. at 648. The constitutionally acceptable opt-out alternative is significant in that it reveals that protection of dissenters' rights can be achieved through means significantly less restrictive of the union's associational freedoms than § 760's opt-in requirement. See id .
¶64 In sum, § 760 regulates the relationship between the union and agency fee payers with regard to political expression. Therefore, we apply the framework set forth in Boy
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Scouts to determine whether § 760 violates the union's right of expressive association. The union engages in expressive activity and Section 760's opt-in requirement significantly burdens the union's association with agency fee payers with regard to its political speech. Accepting the argument that protection of dissenters' rights is a compelling state interest, the opt-out procedure is a less restrictive constitutionally permissible alternative. Section 760's opt-in procedure is not narrowly tailored to advance the State's interest in protecting dissenters' rights, and thus, the statute is unconstitutional.
3. Does chapter 42.17 RCW create a private right of action?
¶65 Because Davenport's claims in the consolidated case are founded on an alleged violation of § 760, we do not reach either Davenport's claim that chapter 42.17 RCW implies a private right of action or Davenport's tort claims. We therefore affirm the Court of Appeals' remand of Davenport to the superior court for dismissal.
CONCLUSION
¶66 We hold that § 760 is unconstitutional. We affirm the Court of Appeals in each case.
C. JOHNSON, MADSEN, BRIDGE, CHAMBERS, and OWENS, JJ., concur.
¶67 SANDERS, J. (dissenting) -
That to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical.«7»
¶68 The majority turns the First Amendment on its head. Unions have a statutory, not constitutional, right to cause employers not only to withhold and remit membership dues but also to withhold and remit fees from nonmem
«7»THOMAS JEFFERSON, RELIGIOUS LIBERTY GUARANTEED: BILL FOR ESTABLISHING RELIGIOUS FREEDOM (1779) reprinted in A DOCUMENTARY HISTORY OF RELIGION IN AMERICA 231 (Edwin S. Gaustad ed., 3d ed. 2003) (emphasis omitted).
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bers in an equivalent amount.«8»Absent this statutory mechanism for the withholding and remission of agency fees (or membership fees for that matter), there is no right, constitutional or otherwise, for the union to require it. Abood v. Detroit Bd. of Educ. , 431 U.S. 209, 223, 97 S. Ct. 1782, 52 L. Ed. 2d 261 (1977).
¶69 Many other states have markedly different statutory schemes: Some entirely bar union security agreements and outlaw agency shops as well.«9»
¶70 Should the legislature of the state of Washington choose to repeal the mandatory withholding provisions of RCW 41.59.060 and .100, there would be no constitutional impediment to doing so. And no party to this proceeding claims there is.
¶71 However the existence of these mandatory withholding statutes does raise a very definite constitutional problem insofar as the statute is used to compel the nonmember to support the political advocacy of the union without his
«8»RCW 41.59.060 (2) ("If an agency shop provision is agreed to and becomes effective pursuant to RCW 41.59.100 , except as provided in that section, the agency fee equal to the fees and dues required of membership in the exclusive bargaining representative shall be deducted from the salary of employees in the bargaining unit."); RCW 41.59.100 ("A collective bargaining agreement may include union security provisions including an agency shop . . . . If an agency shop provision is agreed to, the employer shall enforce it by deducting from the salary payments to members of the bargaining unit the dues required of membership in the bargaining representative, or, for nonmembers thereof, a fee equivalent to such dues. . . . ").
«9» See ALA. CODE §§ 25-7-6, 25-7-30 to 25-7-36 (Supp. 1992); ARIZ. REV. STAT. ANN . CONST . art. XXV (West 1984) and §§ 23-1301 to 23-1303 (West 1995); ARK. CODE ANN . §§ 11-3-301 to 11-3-304 (Michie Supp. 1996); FLA. STAT. ANN . CONST . art. 1, § 6 (West 1991); GA. CODE ANN . §§ 34-6-20 to 34-6-28 (1998); IDAHO CODE ANN . §§ 44-2001 to 44-2012 (1997); IOWA CODE ANN . §§ 731.1 to 731.5 (West 1993); KAN. STAT. ANN . CONST . art. 15, § 12 (1988); LA. REV. STAT. ANN . §§ 23:981 to 23:985 (West 1998); MISS. CODE ANN . § 71-1-47 (1995); NEB. REV. STAT . CONST . art. XV, § 13 (1995); NEV. REV. STAT. ANN . §§ 613.230 to 613.300 (Michie 1996); N.C. GEN. STAT . §§ 95-78 to 95-84 (1997); N.D. CENT. CODE §§ 34-01-14, 34-08-04 (1987); S.C. CODE ANN . §§ 41-7-10 to 41-7-90 (Law Co-op. 1986); S.D. Codified Laws CONST . art. VI, § 2 (Michie 1978) and §§ 60-8-3 to 60-8-8 (Michie 1993); TENN. CODE ANN . §§ 50-1-201 to 50-1-204 (1991); TEX. LAB. CODE ANN . §§ 101.051 to 101.053 (West 1996); UTAH CODE ANN . §§ 34-34-1 to 34-34-17 (1997); VA. CODE ANN . §§ 40.1-58 to 40.1-69 (Michie 1994); WYO. STAT. ANN . §§ 27-7-108 to 27-7-115 (Michie 1997). Thirteen of these states outlaw agency shops as well as union shops. There is no indication that any state has been held to have violated union members' rights by foreclosing mandatory collection of fees from nonmembers.
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consent. Nearly every case cited by the majority concerns precisely that eventuality. However that constitutional problem can no longer arise in the state of Washington by virtue of a further statute, RCW 42.17.760 , which provides in its entirety:
A labor organization may not use agency shop fees paid by an individual who is not a member of the organization to make contributions or expenditures to influence an election or to operate a political committee, unless affirmatively authorized by the individual.
¶72 There is nothing ambiguous about this statute. No labor organization may use agency fees for political purposes absent "affirmative authoriz[ation]" by the individual. Nonaction or acquiescence is not "affirmative authoriz[ation]."
¶73 Given that the legislature could constitutionally repeal the whole statutory scheme allowing withholding in the first place, I find it nearly beyond comprehension to claim that the legislature, or the people acting through their sovereign right of initiative, could not qualify these statutes to ensure their constitutional application.
¶74 In short, the majority turns the First Amendment on its head to invalidate a state statute enacted to further protect the constitutional rights of nonunion members who are required to pay agency fees as the price of their employment.
¶75 While the First Amendment protects the right to organize and to express ideas on behalf of an organization, it "does not impose any affirmative obligation on the government to listen, to respond or . . . to recognize the association and bargain with it." Smith v. Ark. State Highway Employees , 441 U.S. 463, 465, 99 S. Ct. 1826, 60 L. Ed. 2d 360 (1979). See also Brown v. Alexander , 718 F.2d 1417, 1421-22 (6th Cir. 1983). Following from this basic premise, there is no constitutional right to have the government deduct union dues (and, by logical extension, agency fees) from paychecks. Ark. State Highway Employees v. Kell , 628 F.2d 1099 (8th Cir. 1980).
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¶76 "Although loss of payroll deductions may economically burden the [union] and thereby impair its effectiveness, such a burden is not constitutionally impermissible." S.C. Educ. Ass'n v. Campbell , 883 F.2d 1251, 1256 (4th Cir. 1989). "[T]he First Amendment does not impose an affirmative obligation on the state to assist the program of an association by providing payroll deduction services." Id. at 1257. The Fourth Circuit, examining whether payroll deductions were constitutionally required, quoted the United States Supreme Court, " '[A] legislature's decision not to subsidize the exercise of a fundamental right does not infringe that right.' " Id. at 1256 (quoting Regan v. Taxation With Representation of Wash ., 461 U.S. 540, 549-50, 103 S. Ct. 1997, 76 L. Ed. 2d 129 (1983) (citing Buckley v. Valeo , 424 U.S. 1, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976))). The court concluded by stating, "[t]he state's failure to authorize payroll deductions for the [union] does not deny [union] members the right to associate, to speak, to publish, to recruit members, or to otherwise express and disseminate their views." Id. at 1257.
¶77 The Ohio legislature eliminated wage checkoffs for the support of any "candidate, separate segregated fund, political action committee, legislative campaign, political party, or ballot issue." OHIO REV. CODE ANN. § 3599.031(H) ( LEXISNEXIS 2006). The United States Court of Appeals for the Sixth Circuit found this constitutional. Toledo Area AFL-CIO Council v. Pizza , 154 F.3d 307, 319-21 (6th Cir. 1998).
¶78 Therefore, it would be perfectly constitutional if the State chose to eliminate the payroll deduction for collection of agency shop fees altogether. How then could merely placing a procedural condition on the collection of a small portion of such shop fees (those that would be used to influence an election or to operate a political committee) violate the constitution?
¶79 The majority chooses not to address this line of cases. Instead it distorts cases delineating the requirements protecting dissenting union members and nonmem
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bers from having their dues used to support political activities with which they disagree to do the opposite: limit the State's ability to protect such dissenters.
¶80 Simply put, all of the cases cited by the majority involve claims by dissenters that certain steps were required to protect their constitutional right not to associate and not to have their money spent supporting political positions with which they disagreed.«10»I cannot improve upon Judge J. Robin Hunt's dissent from the case below: "[T]hese cases do not support the converse, advanced by the majority here, that an 'opt-in' provision such as Washington's is constitutionally barred." State ex rel. Wash. State Pub. Disclosure Comm'n v. Wash. Educ. Ass'n , 117 Wn. App. 625 , 642, 71 P.3d 244 (2003) (Hunt, J., dissenting).«11»Judge Hunt's learned dissent cogently analyzes each of the cases relied upon by the majority and reaches the correct conclusion.«12»
¶81 Our majority takes "dissent is not to be presumed"«13»out of the context in which it was written - the context of unions categorically violating the rights of dissenters. That language simply served to limit the actions a union must
«10» Mitchell v. Los Angeles Unified School District , 963 F.2d 258 (9th Cir. 1992) is no different. That case concerned the First Amendment right of nonunion employees to withhold financial support from union political activity. The court held the constitutional right of the nonunion employees was adequately protected by an opportunity to "opt-out" of full dues payment through an agency fee. The constitutional rights of the union were never at issue.
«11» See also IRVING M. COPI & CARL COHEN, INTRODUCTION TO LOGIC 219-20 (9th ed. 1994) (converse of a given proposition not necessarily valid).
«12» See State ex rel. Wash. State Pub. Disclosure Comm'n , 117 Wn. App. at 642 -44 (Hunt, J., dissenting), analyzing Int'l Ass'n of Machinists v. Street , 367 U.S. 740, 81 S. Ct. 1784, 6 L. Ed. 2d 1141 (1961); Bhd. of Ry. & S.S. Clerks v. Allen , 373 U.S. 113, 83 S. Ct. 1158, 10 L. Ed. 2d 235 (1963); Abood , 431 U.S. 209; Ellis v. Bhd. of Ry. , 466 U.S. 435, 104 S. Ct. 1883, 80 L. Ed. 2d 428 (1984); Mitchell , 963 F.2d 258. While Judge Hunt did not examine Weaver v. University of Cincinnati , 970 F.2d 1523 (6th Cir. 1992), that case arose in the identical context to the others: a claim that certain procedures, such as affirmative consent, were constitutionally required to protect dissenters' rights. See Weaver , 970 F.2d at 1531. All of these cases dealt with the constitution a floor - a minimum level of process needed to protect dissenters' rights. None of these cases dealt with the constitution as a ceiling limiting the discretion of legislators, or the people acting as legislators, in providing further protection to dissenters.
«13» Street , 367 U.S. at 774; Abood , 431 U.S. at 238.
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undertake in the absence of a statutory scheme . The holdings of all the cases cited by the majority amount to a simple proposition: the constitution requires at least an opt-out scheme to protect dissenters' rights.«14»None of these cases stand for the proposition that the constitution limits a different legislative approach to protecting dissenters' rights, including an opt-in scheme.
¶82 From the majority's misconstruction of the "dissent is not to be presumed" language a false "balance" requirement is invented. Other than general paeans to the right of association, the majority cites no other precedent for its holding that the "balance" between the associational rights of dissenters and nondissenters is upset by requiring one to register assent, rather than register dissent.«15»Again, if the elimination of a payroll deduction does not abridge the constitutional rights of union members and nonobjecting nonmembers to associate, it is inconceivable that requiring
«14»Even the language quoted by Justice Ireland demonstrates this: " '[T]he Constitution requires only that such expenditures be financed from charges, dues, or assessments paid by employees who do not object . . . .' " Majority at 559 (alteration in original) (emphasis added) (quoting Abood , 431 U.S. at 235-36). Further, Abood was a plurality opinion, and the concurring justices either explicitly chose not to address alternative remedies for the violations of dissenters' rights, remedies such as RCW 42.17.760 ( see Abood , 431 U.S. at 244 (Stevens, J., concurring)), or explicitly stated that the constitution does not require employees to "declare their opposition to the union and initiate a proceeding" in order to vindicate their First Amendment rights. Abood , 431 U.S. at 245 (Powell, J., concurring).
«15»And even the cases cited as interpreting the "presumption of dissent" are misrepresented. Wagner v. Professional Engineers in California Government , 354 F.3d 1036, 1043 (9th Cir. 2004) is cited for the proposition that "[a] presumption of dissent fails to respect the nonmember's First Amendment rights as 'running both ways.' " Majority at 561 (quoting Wagner , 354 F.3d at 1043). Yet the issue discussed in that section of Wagner was whether the proper remedy for an inadequate Hudson notice (where no statutory scheme required assent prior to use) was return of the nonchargeable amounts to all fee payers, including those who did not object, or whether the proper remedy was a new, proper notice with a renewed opportunity to object and then to receive a refund with interest. Chicago Teachers Union v. Hudson , 475 U.S. 292, 106 S. Ct. 1066, 89 L. Ed. 2d 232 (1986). The case had nothing to do with whether requiring assent prior to use of nonobjecting nonmembers' payroll deductions was constitutional. Indeed, the case stresses protection of dissenters in absence of a statutory scheme protecting them: "The fundamental right at issue is the right to be informed before making a choice whether to pay for non-chargeable expenditures." Wagner , 354 F.3d at 1043.
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assent as a precondition to using funds generated by a payroll deduction abridges such rights.
¶83 In fact, an "opt-in" legislative scheme has explicitly been constitutionally upheld. In Michigan State AFL-CIO v. Miller , 103 F.3d 1240 (6th Cir. 1997), the Sixth Circuit upheld a statute that read:
"[A] labor organization may solicit or obtain contributions for a separate segregated fund . . . on an automatic basis, including but not limited to a payroll deduction plan, only if the individual who is contributing to the fund affirmatively consents to the contribution at least once in every calendar year."
Id. at 1248-49 (quoting MICH. COMP. LAWS ANN . § 169.255(6) (West 1966)).
¶84 The statutory scheme in Michigan prohibited labor unions from making political contributions from general funds, requiring them to maintain a "segregated" fund for such contributions. Id. at 1244. Thus, in order to solicit or obtain funds that would be used for political purposes - even from its own members, let alone nonmembers - the union had to obtain "affirmative consent" for the deduction every calendar year.
¶85 This is a more restrictive scheme than the Washington statute at issue since it applies to all union members while the Washington statute applies only to nonmembers.«16»But the statute mirrors Washington's in requiring "affirmative consent" - substantively identical to "affirmative authorization" - before using payroll deductions for political purposes. And even given the Michigan statute's broader effects in applying to union members, the Sixth Circuit stated:
«16»The majority's attempt to distinguish Miller on the basis that Washington has a statute, RCW 42.17.680 (3), limiting union members' payroll deductions is baffling. The fact that Washington also has a statute regulating union member payroll deductions (though in a different manner than Michigan's) doesn't affect the central premise of Miller - that an "opt-in" system regarding payroll deductions does not violate the First Amendment.
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[T]he suggestion that asking people to check a box once a year unduly interferes with the speech rights of those contributors borders on the frivolous.
Id. at 1253.
¶86 The majority's treatment of this case borders on the inexplicable. It claims that the primary issue in Miller was the equal application of the reverse checkoff to unions, corporations, nonprofits, and other groups. Majority at 565 n.6. It was nothing of the sort. The three sections of the opinion are labeled "Facts" ( id. at 1243), "Intervention" ( id. at 1245), and "The First Amendment and § 169.255(6)" ( id . at 1248). There are no sections involving equal protection challenges.«17»
¶87 As Miller recognized, the suggestion that a legislative choice to protect dissenting nonmembers by requiring affirmative authorization before using their agency shop fees to influence an election or to operate a political committee violates the first amendment to the United States Constitution "borders on the frivolous."
¶88 The majority claims this statute violates the First Amendment associational rights of the union , citing Boy Scouts of America v. Dale , 530 U.S. 640, 120 S. Ct. 2446, 147 L. Ed. 2d 554 (2000).
¶89 This argument's flaw is at its foundation: association is a two way street requiring a mutual desire to
«17»The challenge in Miller was to both associational and speech rights. Miller , 103 F.3d at 1250. Similarly, the majority frames the issue in both political speech and associational terms. Majority at 557. But while the majority chooses to focus on the line of United States Supreme Court cases concerning associational (and nonassociational) rights, the Sixth Circuit focused on the free speech cases. Under that line of cases, the Sixth Circuit looked at whether the requirement of affirmative consent for a payroll deduction was a content-neutral restriction on the potential speech of union members who would have been funded by the payroll deduction. Miller , 103 F.3d at 1250-53. The majority determined that the restriction on speech was content-neutral, and in making that determination the court examined whether the statute was an invidious "attempt to limit contributions made to separate segregated funds or to favor one class of voters over another." Id. at 1251. The court determined that there was no invidious purpose because the "statute applies evenhandedly." Id. I of course agree that there is no violation of free speech rights in limiting a payroll deduction system and of course no violation of associational rights, as outlined above.
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associate by all concerned. But here nonunion employees have elected not to associate. This does not violate the associated rights of the union or its members since it had no constitutional right to compel membership much less monetary support from nonmembers in the first place.
¶90 Moreover, this argument for unconstitutionality was never advanced by the parties and is therefore not properly considered by the court. See RAP 9.12 (limiting review of summary judgment to "evidence and issues called to the attention of the trial court"); see also Nelson v. McGoldrick , 127 Wn.2d 124 , 140, 896 P.2d 1258 (1995); Simpson Tacoma Kraft Co. v. Dep't of Ecology , 119 Wn.2d 640 , 649, 835 P.2d 1030 (1992) (refusing consideration of issues not raised before trial court); cf . Tiffany Family Trust Corp. v. City of Kent , 155 Wn.2d 225 , 240, 119 P.3d 325 (2005) (refusing consideration of 42 U.S.C. § 1983 claim raised only in reply brief).
¶91 However even if it is properly before the court, it is not meritorious since this statute does not apply to union members, only nonmembers who must pay agency fees because of their refusal to join the union. The right of these nonunion employees to refuse to join the union is itself protected by the First Amendment right of association as " '[f]reedom of association . . . plainly presupposes a freedom not to associate.' " Boy Scouts , 530 U.S. at 563 (alteration in original) (quoting Roberts v. U.S. Jaycees , 468 U.S. 609, 623, 104 S. Ct. 3244, 82 L. Ed. 2d 462 (1984)); Good v. Associated Students of Univ. of Wash. , 86 Wn.2d 94 , 104, 542 P.2d 762 (1975). Boy Scouts protected the right of nonassociation. Were this statute to apply to union dues from voluntary union members, the analysis might be arguable. But it doesn't, and it isn't.
¶92 The majority confuses the analysis further by referring to "the union's expressive association with agency fee payers," majority at 568, and "its [union's] expressive association with nonobjecting agency fee payers." Id . at 569. But there is no association between the union and agency fee payers because by definition these individuals have
580 State ex rel. Pub. Disclosure Comm'n v. Wash. Educ. Ass'n Mar. 2006
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refused to join (associate with) the union. The absence of membership defeats any claim that the regulation of statutorily required monetary support can possibly violate the right of union members to freely associate with one another for political advocacy. Rather it puts in jeopardy the First Amendment right of nonmembers to refuse to associate with a union which uses their money to advance a political agenda with which they might disagree. That is the concern of the First Amendment in this context, as it is the even more protective concern of RCW 42.17.760 .
"Our Government has no more power to compel individuals to support union programs or union publications than it has to compel the support of political programs, employer programs or church programs. And the First Amendment, fairly construed, deprives the Government of all power to make any person pay out one single penny against his will to be used in any way to advocate doctrines or views he is against, whether economic, scientific, political, religious or any other."
Good , 86 Wn.2d at 101 (quoting Int'l Ass'n of Machinists v. Street , 367 U.S. 740, 791, 81 S. Ct. 1784, 6 L. Ed. 2d 1141 (1961) (Black, J., dissenting)).
¶93 I dissent.
ALEXANDER, C.J., and FAIRHURST, J., concur with SANDERS, J. No. 71267-1. En Banc.]
Argued June 22, 2004. Decided March 30, 2006.
THE STATE OF WASHINGTON , Respondent , v. DAYVA CROSS , Appellant .
[1] Criminal Law - Punishment - Death Penalty - Review - Heightened Scrutiny - In General. The Supreme Court gives heightened scrutiny to issues arising from the penalty phase of a capital case in which the death penalty was imposed.
Mar. 2006 State v. Cross 581
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[2] Criminal Law - Punishment - Death Penalty - Review - Procedural Rules - Liberal Construction. When reviewing a sentence of death, the Supreme Court liberally construes procedural rules, even if the issue requiring the construction arises in the context of a claim of error raised for the first time on appeal.
[3] Jury - Right to Jury - Criminal Case - Impartial Jury - Sixth Amendment Protection. The Sixth Amendment guarantees to criminal defendants the right to a fair and impartial jury.
[4] Jury - Selection - Death Penalty - Opposition - Disqualification - Test. A person having scruples about capital punishment will not be excluded from serving on the jury in the penalty phase of a capital case if the person's views do not prevent or substantially impair the person's performance of duties as a juror in accordance with the court's instructions and the juror's oath. A person's opposition to the death penalty is not a bar to the person's serving on a capital sentencing jury so long as the person can temporarily set aside his or her own beliefs in deference to the rule of law.
[5] Jury - Selection - Death Penalty - Opposition - Disqualification - Determination - Review. In the penalty phase of a capital case, the trial court bears the heavy responsibility of ensuring that the jury is "death qualified." The determination of whether an individual juror can actually set aside personal opposition to the death penalty ultimately is a question of fact for the trial court to decide. On review, the Supreme Court will give considerable deference to the trial court's decision, especially since the trial court is in the best position to assess the body language, tone, and verbal responses of jurors. The trial court's decision will not be disturbed absent a manifest abuse of discretion.
[6] Jury - Selection - Death Penalty - Opposition - Disqualification - Character or Condition of Defendant - Potential Mitigating Factor. A person may be excluded from serving on the jury in the penalty phase of a capital case if the person indicates an unwillingness to consider the death penalty due to some aspect of the defendant's character or condition, even if that character or condition could be raised by the defendant as a mitigating factor. Potential jurors must be willing to consider all of the penalties provided by the law and not be irrevocably committed, before the trial begins, to vote against the death penalty regardless of the facts and circumstances that might emerge in the course of the proceeding.
[7] Jury - Selection - Death Penalty - Challenge for Cause - Test. A person may be excluded from serving on the jury in the penalty phase of a capital case if the person is unable or unwilling to fully and fairly consider the evidence in the case, to follow the court's instructions, or to follow the law.
582 State v. Cross Mar. 2006
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[8] Criminal Law - Punishment - Death Penalty - Special Sentencing Procedure - Instructions - Review - Failure To Request - Effect. A capital defendant's claim that the trial court erroneously failed to give an instruction in the sentencing phase of the proceeding may be considered by the Supreme Court on review despite the defendant's failure to have requested the instruction.
[9] Criminal Law - Punishment - Death Penalty - Special Sentencing Procedure - Instructions - Absence of Premeditation Instruction - Alford Plea of Guilty - Due Process of Law. A defendant who enters an Alford plea of guilty to a capital charge of aggravated first degree murder is not categorically denied due process of law under the Fourteenth Amendment by the absence of an instruction in the penalty phase telling the jury that it may consider whether the defendant actually premeditated the killing if the absence of the instruction is not due to any actions by the State and the defendant is not prevented from arguing lack of premeditation.
[10] Criminal Law - Punishment - Death Penalty - Special Sentencing Procedure - Instructions - Absence of Premeditation Instruction - Alford Plea of Guilty - Eighth Amendment. In the penalty phase of a capital case against a defendant who has entered an Alford plea of guilty to aggravated first degree murder, the absence of an instruction that the jury may consider whether the defendant actually premeditated the killing does not categorically violate the defendant's Eighth Amendment right to an individualized assessment in which the trier of fact is allowed to consider and give effect to the defendant's mitigating evidence if the defendant was able to and did in fact argue to the jury a lack of premeditation and the instructions that were given to the jury explicitly instructed the jury to consider all mitigating factors.
[11] Criminal Law - Right to Counsel - Review - Standard of Review. A criminal defendant's claim of an unlawful denial of the right to counsel is reviewed de novo, although the reviewing court will accord appropriate deference to the trial court's determination of the underlying facts.
[12] Criminal Law - Right to Counsel - Right To Control Trial Strategy - Capital Case - Admission of Mental Health Evidence in Penalty Phase. In a capital sentencing proceeding, the decision whether to present evidence of the defendant's mental health is a strategic decision for defense counsel to make.
[13] Criminal Law - Right to Counsel - Right To Control Trial Strategy - In General. Defense counsel is afforded wide latitude to control the strategy and tactics of the defense. The choice of trial tactics, the action to be taken or avoided, and the methodology to be employed must rest with counsel's judgment. In general, the client decides the goals of litigation and whether to exercise some specific constitutional rights, and counsel determines the means.
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[14] Criminal Law - Right to Counsel - Indigent Defendant - Dissatisfaction With Appointed Counsel - Disagreement Over Trial Strategy - Substitution of Counsel - Necessity. A trial court's denial of an indigent criminal defendant's motion for substitution of appointed counsel with whom the defendant has had a falling out over trial strategy does not necessarily constitute denial of the defendant's Sixth Amendment right to counsel if the cause of the falling out is a mere lack of accord and not a complete collapse of the attorney-client relationship.
[15] Criminal Law - Right to Counsel - Indigent Defendant - Dissatisfaction With Appointed Counsel - Motion - Necessity - Sufficiency - Timeliness. An indigent criminal defendant may not discharge appointed counsel unless the motion is timely and is made upon proper grounds.
[16] Criminal Law - Right to Counsel - Indigent Defendant - Dissatisfaction With Appointed Counsel - Review - Factors. When reviewing a trial court's refusal to grant an indigent criminal defendant's motion for substitution of appointed counsel with whom the defendant has had a falling out over trial strategy, an appellate court considers (1) the extent of the conflict, (2) the adequacy of the trial court's inquiry into the conflict, and (3) the timeliness of the defendant's motion for substitution of counsel.
[17] Criminal Law - Right to Counsel - Right To Proceed Pro Se - Assertion of Right - Elements. A criminal defendant's request to proceed pro se must be timely and stated unequivocally.
[18] Criminal Law - Right to Counsel - Right To Control Trial Strategy - Review - Standard of Review. An appellate court reviews a trial court's rulings in regard to a criminal defendant's differences or conflicts with counsel over defense strategy for an abuse of discretion.
[19] Criminal Law - Right to Counsel - Right To Control Trial Strategy - Attorney-Client Conflict - Distinguished From Conflict of Interest. A conflict between a criminal defendant and counsel over defense strategy is not the same thing as a conflict of interest.
[20] Criminal Law - Right to Counsel - Right To Control Trial Strategy - Attorney-Client Conflict - Relationship Between Counsel and Defendant. While the relationship between a criminal defendant and counsel is a factor that bears on whether counsel's representation has been irrevocably poisoned by a conflict with the defendant over defense strategy, it is not dispositive.[21] Criminal Law - Right to Counsel - Right To Control Trial Strategy - Presentation of Mental Health Evidence. A conflict between a criminal defendant and counsel over whether to present evidence concerning the defendant's mental health generally is not
584 State v. Cross Mar. 2006
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the type of conflict that raises Sixth Amendment concerns. Absent actual ineffective assistance of counsel, this is the type of conflict that courts generally leave to counsel and client to work out.
[22] Criminal Law - Right to Counsel - Right To Control Trial Strategy - Attorney-Client Conflict - Inquiry - Adequacy - Test. An adequate inquiry into a conflict over trial strategy between a criminal defendant and counsel must include (1) a full airing of the concerns (which may be conducted in camera) and (2) a meaningful inquiry by the trial court.
[23] Criminal Law - Right to Counsel - Right To Control Trial Strategy - Goals of Litigation. Although defense counsel wields enormous power within the scope of representing the defendant, the goals of litigation remain in the defendant's hands.
[24] Criminal Law - Plea of Guilty - Nature of Right - In General. A criminal defendant has an absolute right to plead guilty, so long as the defendant is competent and the plea is made knowingly, intelligently, and voluntarily.
[25] Criminal Law - Plea of Guilty - Withdrawal - By Appellate Court - Competent Defendant - Knowing, Intelligent, and Voluntary Plea. Where a criminal defendant initially enters a plea of not guilty but later withdraws the plea and enters a plea of guilty after the trial court determines that the defendant is competent and that the guilty plea is made knowingly, intelligently, and voluntarily, a reviewing court will not substitute its judgment for that of the trial court by withdrawing the guilty plea and imposing a plea of not guilty on the defendant's behalf if the record supports the trial court's determinations and the defendant does not seek to withdraw the guilty plea.
[26] Criminal Law - Insanity - Competency To Stand Trial - Test. A criminal defendant is competent to stand trial if the defendant is able to appreciate the nature of the proceedings and to assist with the defense.
[27] Criminal Law - Right to Counsel - Right To Control Trial Strategy - Prerogative of Counsel - Objection by Defendant - In General. Defense counsel has broad authority to determine defense strategy, even over the defendant's objections.
[28] Criminal Law - Right to Counsel - Right To Control Trial Strategy - Capital Case - Penalty Phase - In General. When a capital defendant decides to put on a mitigation case in the penalty phase of the trial, the strategy for presenting that case is largely in the hands of counsel.
[29] Witnesses - Privileges - Physician-Patient Privilege - Scope - Nonconfidential Communication. A nonconfidential communication made to a doctor or psychologist is not privileged.
Mar. 2006 State v. Cross 585
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[30] Witnesses - Privileges - Physician-Patient Privilege - Forensic Examination. A medical examination conducted solely for forensic purposes and not for the purpose of providing treatment is not protected by the RCW 5.60.060 (4) testimonial prohibition of the physician-patient privilege.
[31] Criminal Law - Insanity - Proof - Expert Testimony - Mental Disorder - Admissibility - In General. Subject to the redaction or exclusion of incriminating statements, an expert who has examined a criminal defendant may testify about the defendant's mental health if the defendant's mental health has been put into controversy by the defense.
[32] Criminal Law - Insanity - Proof - Presentation by Defense - Effect - Waiver of Privilege. A criminal defendant's presentation of mental health testimony largely waives the right to keep mental health information privileged.
[33] Criminal Law - Insanity - Proof - Presentation by Defense - Counsel's Decision - In General. In a criminal proceeding, it is for defense counsel, not the defendant, to decide whether to present evidence of the defendant's mental health, so long as the decision does not constitute ineffective assistance of counsel.
[34] Criminal Law - Punishment - Death Penalty - Special Sentencing Procedure - Evidence - Mental Health of Defendant - Discretion of Counsel. When a capital defendant decides to put on a mitigation case in the penalty phase of the trial, it is for defense counsel, not the defendant, to decide whether to present evidence of the defendant's mental health, so long as the decision does not constitute ineffective assistance of counsel; i.e., the trial court may allow defense counsel to present expert testimony concerning the defendant's mental health over the defendant's pro se objections. SPRC 5 does not grant a defendant the authority to control whether mental health evidence may be admitted in a capital sentencing proceeding.
[35] Criminal Law - Punishment - Death Penalty - Special Sentencing Procedure - Instructions - Review - Challenge Not Raised at Trial. Upon review of a sentence of death, the Supreme Court may consider a challenge to the penalty phase instructions even though they were not challenged at trial.
[36] Criminal Law - Punishment - Death Penalty - Special Sentencing Procedure - Instructions - Review - Standard of Review. The instructions given in the penalty phase of a capital case are reviewed by the Supreme Court de novo. The court reads the instructions in context.
586 State v. Cross Mar. 2006
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[37] Criminal Law - Punishment - Death Penalty - Special Sentencing Procedure - Mitigating Circumstances - Statutory Query - Instruction - Sufficiency. The jury's charge in the penalty phase of a capital case is sufficiently stated by an instruction that jurors must "deliberate in an effort to reach a just verdict" and should not change their honest beliefs "as to the weight or effect of the evidence solely because of the opinions of . . . fellow jurors, or for the mere purpose of returning a verdict" and by a verdict form stating that, with respect to the question of whether there are sufficient mitigating circumstances to merit leniency, the answer of "yes" will result in a death sentence and the answer of "no" or "no unanimous agreement" will result in a life sentence without the possibility of parole. The instruction and verdict form do not erroneously communicate to the jury that a nonunanimous decision is not a verdict. They instead suggest that unanimity is a goal to be strived for, not a requirement for a verdict. Any lingering confusion is obviated if the trial court clearly and repeatedly instructs the jury that a unanimous verdict is required to sentence the defendant to death and that a nonunanimous verdict will result in a life sentence.
[38] Criminal Law - Punishment - Death Penalty - Special Sentencing Procedure - Instructions - Definitions - Words of Common Understanding. When instructing the jury in the penalty phase of a capital case, the trial court has the discretion whether to grant a request to define words of common understanding. While the trial court must define technical words and expressions, it is not required to define words that are self-explanatory or that are within ordinary understanding.
[39] Criminal Law - Punishment - Death Penalty - Special Sentencing Procedure - Instructions - Definitions - Necessity - "Common Scheme or Plan". In the penalty phase of a capital case, "common scheme or plan" are words of common understanding that do not need to be defined in the instructions given to the jury.
[40] Criminal Law - Punishment - Death Penalty - Special Sentencing Procedure - Evidence - Review - Standard of Review. A trial court's evidentiary rulings in the penalty phase of a capital case are reviewed under the abuse of discretion standard.
[41] Criminal Law - Review - Right of Appeal - Waiver - Plea of Guilty - Prearraignment Errors. In general, a defendant pleading guilty waives the right to appeal errors committed prior to arraignment, including unlawful searches or seizures, if the error does not effect a violation of due process of law.
[42] Criminal Law - Evidence - Photographs - Crime Scene - Lawful Entry - Necessity. Crime scene photographs taken by police generally are admissible so long as the police entry into the crime scene was lawful.
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[43] Searches and Seizures - Warrantless Entry - Emergency - Medical Emergency - Test. Under the medical emergency exception to the Fourth Amendment warrant requirement, police may make a warrantless entry into a home so long as the entry is motivated, both subjectively and objectively, by the officer's belief that there is a need to render aid or assistance.
[44] Criminal Law - Right To Remain Silent - Invocation of Right - Effect. When an accused indicates in any manner, at any time prior to or during police questioning, a wish to remain silent, the interrogation must cease.
[45] Criminal Law - Confessions - Admission as Evidence - Review. A trial court's admission of a criminal defendant's out-of-court statement is reviewed for an abuse of discretion.
[46] Criminal Law - Right To Remain Silent - Waiver - Selective Responses - Effect. A criminal defendant's equivocal protests to police questioning do not effectively assert the right to remain silent, and selective responses to police questioning may function as a waiver of the right.
[47] Criminal Law - Plea of Guilty - Effect - Waiver of Right of Appeal - Scope. A plea of guilty forecloses an appeal except for a challenge to the validity of a statute, the sufficiency of the information, the jurisdiction of the court, or the circumstances surrounding the plea.
[48] Criminal Law - Plea of Guilty - Voluntariness - Review - Withdrawal of Plea Not Sought - Claim of Error Not Striking. Where a defendant has pleaded guilty to a charge, an appellate court will not consider a challenge by the defendant to the circumstances surrounding the plea if the defendant does not seek to withdraw the plea and the defect alleged by the defendant is not striking.
[49] Criminal Law - Review - Harmless Error - Cumulative Error - Test. Cumulative error is not a basis for reversing a criminal verdict or judgment if the error is insufficient to deny the defendant a fair trial.
[50] 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 where the penalty is not wantonly or freakishly imposed, the jury's discretion in the proceeding is directed and limited so as to minimize the risk of arbitrary or capricious action, prosecutorial discretion is properly constrained, the jury is directed to consider appropriate factors, and meaningful mandatory appellate review is provided for in every case.
588 State v. Cross Mar. 2006
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[51] Criminal Law - Punishment - Death Penalty - Validity - Arbitrary and Capricious Application - Protections - Proportionality Review. Proportionality review of a sentence of death is only one way that Washington law prevents arbitrary and capricious application of the death penalty.
[52] Criminal Law - Punishment - Death Penalty - Validity - Uneven Application - Singular Aberration - Effect. The death penalty statute (chapter 10.95 RCW) is not rendered unconstitutional when a prosecuting attorney, for legitimate reasons, elects not to seek the death penalty in a particularly heinous case.
[53] 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.
[54] 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. In conducting sufficiency review, the Supreme Court may rely on circumstantial evidence.
[55] Homicide - First Degree Murder - Premeditation - Proof - Multiple Blows. Multiple blows are strong evidence of premeditation.
[56] Homicide - First Degree Murder - Premeditation - Proof - Factors. In determining if the evidence is sufficient for a rational jury to have found premeditation beyond a reasonable doubt, a court may consider the location and severity of the victims' wounds, the accused's acts of violence preceding the killings, the planning and use of the murder weapons, evidence of secondary assaults, statements made by the accused, and evidence of forced entry.[57] Homicide - First Degree Murder - Aggravated First Degree Murder - Aggravating Circumstances - Multiple Murder Victims - Common Scheme or Plan - What Constitutes. A common scheme or plan constitutes an aggravating circumstance within the meaning of RCW 10.95.020 (10) in a prosecution for aggravated first degree murder if the prosecution involves multiple counts of murder and there is a nexus between the homicides, such as an overarching purpose. A scheme or plan is a design, method of action, or system formed to accomplish a purpose. Sophisticated preplanning is not required. The State need only prove an "overarching" plan with a criminal purpose that connects the murders, not that the defendant premeditated to kill multiple or named
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victims, or to kill victims for the same reason. The "common scheme" does not require that the overarching criminal plan be other than the murders themselves. The common scheme or plan aggravating circumstance may apply to a situation where the defendant killed multiple victims for one purpose only.
[58] Criminal Law - Punishment - Death Penalty - Special Sentencing Procedure - Mitigating Circumstances - Scope. Any relevant evidence that in fairness and mercy may be considered as extenuating or reducing the degree of culpability is admissible and must be considered by the jury before it may render a verdict in the penalty phase of a capital case.
[59] 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.
[60] Criminal Law - Punishment - Death Penalty - Review - Proportionality - Purposes. Proportionality review of a death sentence is principally concerned with ensuring that, in the particular case, the sentence (1) is proportional to sentences given in similar cases; (2) is not freakish, wanton, or random; and (3) is not based on race or some other suspect classification.
[61] Criminal Law - Punishment - Death Penalty - Review - Proportionality - Factors. In conducting proportionality review of a death sentence, the Supreme Court, at a minimum, considers (1) the nature of the crime, (2) the aggravating circumstances, (3) the defendant's criminal history, and (4) the defendant's personal history. When analyzing the nature of the crime, the court begins by comparing the specifics of the crime with other death eligible crimes. When analyzing the aggravating circumstances, the court looks at the nature of the aggravators, not merely their quantity.
[62] Criminal Law - Punishment - Death Penalty - Review - Proportionality - Similar Cases - Domestic Violence - Prosecutorial Discretion To Seek Death Penalty - Effect. A sentence of death for a defendant convicted of killing members of his or her own family is not rendered disproportionate by the mere fact that the State did not seek the death penalty in other cases in which death resulted from domestic violence; i.e., the fact that county prosecuting attorneys may be changing their assessment of whether domestic violence resulting in death warrants pursuing a capital sentence does not necessarily render the death penalty disproportionate in a particular case involving domestic violence.
[63] Criminal Law - Punishment - Death Penalty - Review - Proportionality - Victim's Suffering. The death penalty is more deserving in the case of a brutal murder involving substantial conscious suffering by the victim or victims.
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[64] Criminal Law - Punishment - Death Penalty - Review - Proportionality - Criminal History. A capital defendant's lack of a significant criminal history does not necessarily render a sentence of death disproportionate.
[65] Criminal Law - Punishment - Death Penalty - Review - Proportionality - Personal History - Abused as Child. A capital defendant's abusive childhood and medically diagnosed personality disorders (that do not rise to the level of competence-destroying mental illness) do not necessarily render a sentence of death disproportionate, although such factors may be grounds for the jury to show mercy.
[66] 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 one case 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. Each death sentence is the product of unique circumstances.
[67] Criminal Law - Punishment - Death Penalty - Review - Passion or Prejudice - Argument - Nature. Argument during the penalty phase of a capital case improperly appeals to the passion or prejudice of the jury if it is intended to incite feelings of fear, anger, and a desire for revenge or is irrelevant, irrational, and inflammatory such as would prevent a calm and dispassionate appraisal of the evidence.
[68] Criminal Law - Punishment - Death Penalty - Review - Passion or Prejudice - Criminal History. The admission of extrinsic evidence of a capital defendant's criminal history in the penalty phase of the capital proceeding does not necessarily constitute an appeal to the passion or prejudice of the jury.
[69] Criminal Law - Punishment - Death Penalty - Review - Proportionality - Similar Cases - Death Sentence Reversed or Vacated in Subsequent Proceedings. The Supreme Court's proportionality review of a death sentence under RCW 10.95.130(2)(b) requires consideration of whether the sentence is disproportionate based on other sentences imposed, not on other sentences executed. The court uses as a baseline for proportionality review capital sentences rendered by juries, not capital sentences actually executed. The court may therefore rely, for comparative purposes, on those cases in which the death sentence was imposed but was reversed or vacated in subsequent proceedings.[70] Criminal Law - Punishment - Death Penalty - Review - Proportionality - Similar Cases - Reports on File - Incomplete Reports - Effect. The failure of trial courts to consistently provide timely and reliable reports relating critical information
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concerning death eligible crimes for use by the Supreme Court in conducting death sentence proportionality review is not a basis for reversing or vacating a sentence of death in a particular case absent a credible showing that the capital defendant was injured by such failure.
[71] Criminal Law - Punishment - Death Penalty - Review - Proportionality - Statutory Procedure - Validity. The Supreme Court's procedure for reviewing a death sentence for comparative proportionality as mandated by RCW 10.95.130 (2)(b) contains sufficient standards to satisfy constitutional due process requirements.
[72] Criminal Law - Punishment - Death Penalty - Review - Proportionality - Similar Cases - Precise Uniformity. The function of proportionality review of a death sentence under RCW 10.95.130(2)(b) is limited to providing an "additional assurance" that the sentence is not disproportionate in a particular case, not of ensuring proportionality in the first instance. Absent a statutory obligation to apply a narrow definition of "similar cases," the court need not define the term with scientific precision. The administration of proportionality review to ascertain only whether the death sentence is wanton and freakish based on the broad range of aggravated murder cases provides a more reliable and justifiable standard of "disproportionality" and renders negligible the effect of slight deviations in the universe of "similar cases."
ALEXANDER , C.J., and FAIRHURST , J., concur by separate opinion; C. JOHNSON , MADSEN , SANDERS , and OWENS , JJ., dissent by separate opinion; J.M. JOHNSON , J., did not participate in the disposition of this case.
Nature of Action: Capital prosecution for three counts of aggravated first degree murder and one count of kidnapping.
Superior Court: The Superior Court for King County, No. 99-1-02212-9, Joan E. DuBuque, J., on June 22, 2001, entered a judgment on an Alford plea of guilty and a sentence of death upon a verdict that there were not sufficient mitigating circumstances to warrant leniency.
Supreme Court: Holding that the defendant was not prejudiced by the proceedings and that the death penalty was properly imposed, the court affirms the sentence of death.
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Kathryn L. Ross ; and Todd Maybrown (of Allen, Hansen & Maybrown, P.S. ), for appellant.
Norm Maleng , Prosecuting Attorney, and Donald J. Raz , James M. Whisman , Lee D. Yates , and Deborah A. Dwyer , Deputies, for respondent.
Beth M. Andrus on behalf of American Civil Liberties Union of Washington, amicus curiae.
¶1 CHAMBERS, J. - Dayva Cross killed three people, his wife and two of her three daughters. The King County Prosecuting Attorney's Office sought the death penalty. After Cross pleaded guilty to three counts of aggravated first degree murder and one count of kidnapping, a sentencing jury sentenced him to death. We must determine whether he has shown reversible error. Finding he has not, we affirm.
FACTS
¶2 One March 1999 evening, Cross struck his wife, Anoutchka, in the face during an argument. The next morning, Anoutchka's 13-year-old daughter, M.B., woke to the sounds of Cross brutally and repeatedly stabbing her mother and her elder sister, 18-year-old Solome, to death. Clerk's Papers (CP) at 1217-20; Report of Proceedings (RP) (Apr. 17, 2000) at 110. Cross then tried to force his way into the bedroom M.B. shared with her 15-year-old sister, Amanda. Despite Amanda's efforts to keep the door closed, Cross forced it off its hinges and killed her in front of M.B.'s eyes. RP (Apr. 18, 2001) at 20-22. Cross then kept M.B. confined at knife point for five hours while he drank wine and watched television. Id. at 60; CP at 1220. M.B. escaped after he fell asleep. RP (Apr. 18, 2001) at 37.
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\
¶3 Cross was arrested without incident that afternoon. RP (Apr. 16, 2001) at 93-96. After he was arrested, officers and medics reentered the home, confirmed that the victims had been killed, and took pictures of the crime scene. CP at 1098. Officers conducted a more sweeping search after they obtained a search warrant. RP (Apr. 12, 2001) at 31.
¶4 Cross has a long history of mental illness. RP (Apr. 11, 2001) at 52-53, 55; RP (May 1, 2001) at 47. Before March 1999, he had one prior criminal conviction for misdemeanor reckless endangerment. RP (Apr. 11, 2001) at 52. He has attempted suicide at least two times since the 1999 killings. In attempting to take his own life, Cross has fractured his skull and cervical column, has injured his brain and spine, and has rendered himself paraplegic. Id. at 51, 60-61; RP (Apr. 23, 2001) at 74-92. One jury panel had to be dismissed after widespread media coverage of one of his suicide attempts.
¶5 Initially, Cross pleaded not guilty by reason of insanity and informed the court he also intended to present a diminished capacity defense. CP at 281-82. Some time later, and against his counsels' advice, he withdrew his not guilty plea and entered an Alford plea. RP (Sept. 25, 2000) at 49-52; See North Carolina v. Alford , 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970); State v. Newton , 87 Wn.2d 363 , 552 P.2d 682 (1976). The trial judge accepted Cross's plea only after a probing inquiry, which included a competency evaluation at Western State Hospital and review of extensive argument and evidence. CP at 1212-1647; 2156-62; RP (Oct. 15, 2000) at 11-39; RP (Oct. 19, 2000) at 2-34; RP (Oct. 23, 2000) at 9-198. In his Alford plea, Cross specifically denied premeditating the murders. CP at 1651-87. At that time, the prosecution effectively agreed that he could argue lack of premeditation to the sentencing jury as a mitigating factor. His counsel began preparing a mitigation defense based in part on Cross's mental health history.
¶6 Cross made frequent furious outbursts in court, often swearing at the judge and prosecution. E.g., CP at 2273. While Cross vacillated somewhat, he became increasingly
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set against presenting expert testimony on his mental health. CP at 2151. Because counsel was adamant this testimony was required, Cross made multiple motions to fire his attorneys, proceed pro se, or have different counsel appointed. E.g., RP (Apr. 18, 2001) at 6; CP at 2148. It is clear from the record that his counsel believed Cross's best chance to avoid a death sentence was his poor mental health. E.g., RP (Feb. 12, 2001) at 2-10; CP at 2185-87. This conflict created increasing tension.
¶7 After two unsuccessful tries, a sentencing jury was impaneled. This jury considered testimony from experts, from Cross's family, and from friends and family of his victims. RP (May 1, 2001) at 3-159; RP (June 22, 2001) at 13; RP (May 14, 2001) at 4. The jury unanimously found beyond a reasonable doubt that mercy was not warranted, and Cross was sentenced to death. RP (June 22, 2001) at 16. This appeal followed.
ANALYSIS
[1, 2]¶8 Cross pleaded guilty to the underlying crime. Most of the issues before the court are limited to the sentencing phase and will be given heightened scrutiny. State v. Benn , 120 Wn.2d 631 , 648, 845 P.2d 289 (1993). We construe procedural rules liberally in capital cases even when errors are raised for the first time on appeal. State v. Lord , 117 Wn.2d 829 , 849, 822 P.2d 177 (1991).
1. JURY SELECTION
¶9 Cross challenges the exclusion of several jurors who expressed concerns about the death penalty. We find no error.
[3, 4]¶10 The Sixth Amendment guarantees the right to a fair and impartial jury. State v. Brett, 126 Wn.2d 136 , 157, 892 P.2d 29 (1995). To protect both the defendant's right to a fair sentencing hearing, and the State's ability to adequately present its arguments, trial courts first "death qualify" the jury by ascertaining whether the individual jurors will be able to impartially judge both the case and the
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penalty. See Wainwright v. Witt , 469 U.S. 412, 424, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985). We do not exclude a juror who has scruples about capital punishment unless the views would " 'prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.' " Id . at 424 (quoting Adams v. Texas, 448 U.S. 38, 45, 100 S. Ct. 2521, 65 L. Ed. 2d 581 (1980)); cf. RCW 4.44.170 (2) (allowing challenges for cause "[f]or the existence of a state of mind on the part of the juror . . . which satisfies the court that the challenged person cannot try the issue impartially and without prejudice to the substantial rights of the party challenging"). Opposition to the death penalty is no bar to serving on a capital sentencing jury so long as the prospective jurors can "temporarily set aside their own beliefs in deference to the rule of law." Lockhart v. McCree , 476 U.S. 162, 176, 106 S. Ct. 1758, 90 L. Ed. 2d 137 (1986).
[5]¶11 Trial courts bear the heavy responsibility of ensuring that a jury is "death qualified." State v. Brown, 132 Wn.2d 529 , 593, 940 P.2d 546 (1997). The trial judge's factual conclusion is reviewed for manifest abuse of discretion. Id. at 601-02; see also Wainwright , 469 U.S. at 428 (review is deferential). Whether a juror can actually set aside personal opposition to the death penalty is ultimately a factual decision, and we give considerable deference to the trial judge's determination, especially since the trial judge is in the best position to assess juror body language, tone, and verbal responses. Cf. Brown, 132 Wn.2d at 603 -04 (finding no abuse of discretion when trial court excluded a juror with strong objections to the death penalty who nonetheless said she could follow the instructions, specifically noting that her body language clearly indicated otherwise); State v. Rupe, 108 Wn.2d 734 , 749, 743 P.2d 210 (1987) ( Rupe II). However, the erroneous exclusion of a single juror who has scruples about the death penalty, but is nonetheless qualified to serve, results in automatic reversal. Gray v. Mississippi , 481 U.S. 648, 659, 107 S. Ct. 2045, 95 L. Ed. 2d 622 (1987).
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¶12 We consider each juror challenged separately.
A. Juror 8
¶13 Juror 8 initially told the court that "I would support the death penalty depending on the case and the circumstances." RP (Feb. 28, 2001) at 41. After further reflection, he informed the court he would have difficulty considering the case objectively because Cross was confined to a wheelchair:
[W]e have to decide whether or not the defendant should die for the crimes, no matter how heinous they may be. And given the condition that he's in, I'm not sure that I could make that decision. It just seems to me to be a little bit wrong, or I don't feel comfortable making that decision.
RP (Apr. 5, 2001) at 80. Later, he said, "I would have a hard time [sentencing a paraplegic to death]. I'm not sure I could be totally unbiased." Id. at 81. After a brief argument between prosecution and defense, the trial judge excused the juror for cause concluding that:
[W]hat he is telling us today is that [his prior willingness to consider the death penalty] is no longer accurate, having considered it, thought about it, given his current physical condition, there is no way that he believes he could make a decision fairly.
And it is not that he couldn't make a decision, but he cannot make a decision fairly.
Id. at 83.
[6]¶14 This challenge raises a difficult question because Cross's disability is a potential mitigating factor. See Skipper v. South Carolina, 476 U.S. 1, 4-5, 106 S. Ct. 1669, 90 L. Ed. 2d 1 (1986); Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978) (holding the constitution requires "that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record" (emphasis and footnote omitted)). Cross was entitled to ask the jury to grant him mercy on the grounds of
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his physical state. However, the trial judge clearly concluded that Juror 8's mind was closed. Potential jurors must "be willing to consider all of the penalties provided by state law, and . . . not be irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings." Witherspoon v. Illinois, 391 U.S. 510, 522 n.21, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968).
¶15 The trial judge clearly concluded that Juror 8 was not meaningfully willing or able to consider the death penalty given the specific evidence in the case. It was not an abuse of discretion to exclude this juror.
B. Juror 32
¶16 Juror 32 expressed reservations about the death penalty from the beginning, but was not adamantly opposed to it. E.g., RP (Apr. 4, 2001) at 47 ("sometimes it is necessary."). She said she could conceive of herself on a jury that rendered a death verdict. Id. at 42. She also said she would have to be certain and beyond "all doubt" that a death sentence was justified before she could impose it. Id. at 47-40, 57. Given this, it does not appear that her scruples would disqualify her.
[7]¶17 After a review of the record, we conclude she was properly excluded for a different reason. As the trial judge explained:
She is not tracking. You guys could lead her down any path you wanted to, depending on who was talking to her, and she does not understand what the law is. And I think, frankly, her age plays into this. I think her ability to concentrate, and attend, since she couldn't carry through on certain basic concepts from his questioning to yours. We'll let her go.
Id. at 58-59. After voir dire, the trial judge concluded that this juror was not able to fully and fairly consider the evidence in this case. Cross has not shown manifest abuse of discretion in the exclusion of this juror.
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C. Juror 204 «1»
¶18 Juror 204 had clear reservations about the death penalty. She said:
Generally speaking, I don't really like [the death penalty]. I didn't vote for it . . . . That brings up the question, is it a just law? Because -
Just because I don't like something doesn't mean I wouldn't abide by it. And quite honestly, through these months of thinking . . . I can't necessarily say it is an unjust law, but I can say I don't really like it.
RP (Mar. 21, 2001) at 97. She later expanded that "[i]f there is any way I could give the person life rather than the other, I would prefer to do that." Id. at 113. She affirmed, though, that she could follow the law and the instructions. Id. at 155-56 ("I'm here to serve the court, and so the court will have to guide me, and you guys know a whole lot more about this matter than I do."); id. at 122 ("I would certainly not just stand by what I believed to be right, but I would be open minded and I would be willing to listen to the other side, but I will be true to myself."). When asked if she could envision herself on a panel that sentenced someone to death, she said she could. Id. at 121.
¶19 While Juror 204 answered many questions cogently and incisively, she also had difficulty tracking other questions. E.g., id . at 129. She frequently seemed to change her mind, question to question. E.g., id. at 101-02. The trial court concluded:
We spent 50 minutes on that juror . . . .
I thought we were at a badminton match, because she constantly went back and forth and back and forth, and . . . if I were either one of you, I wouldn't want her on this case because there was no certainty she could follow the court's instructions.
«1»We recognize the record may be flawed. Juror "204" went through two separate voir dire sessions the same day. RP (Mar. 21, 2001) at 94-133; 152-167. It is not clear whether she was the same juror, brought back twice, or two different jurors. However, Cross has not shown abuse of discretion either way.
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Id. at 131-32. The trial judge excluded this juror on the grounds she could not follow the court's instructions. This was not an abuse of discretion.
D. Juror 30
¶20 Juror 30 had significant concerns about the death penalty, though he did say there might be a situation where he would find it justified.«2» E.g., RP (Apr. 4, 2001) at 31-32. But even from the cold record, the trial court had good reason to find that Juror 30 was not death qualified. He was willing to accept that his society had the death penalty, but gave every indication he would never seriously consider it. Cross has not established that the trial judge abused her discretion in excluding this juror.
E. Juror 206
¶21 Juror 206 was not opposed to the death penalty in principle. But "it is not something to be taken lightly or used frivolously." RP (Mar. 21, 2001) at 168. He questioned its effectiveness as a deterrent and its expense. Id . He did put significant limitations on the cases where he would find the death penalty appropriate, though he specifically (and repeatedly) cited Hitler as an example of someone who should be put to death. Id. at 168, 174. He informed the court that before he would impose the death penalty, the State would have to show more than the law requires. E.g., id. at 178. The trial judge concluded Juror 206 could not follow the law, despite his assertions to the contrary. Again, the trial judge observed the juror and made that judgment. Cross has not shown manifest abuse of discretion. Accord
«2»E.g.,
Q. So you would never impose the death penalty?
A. I'm not saying that. I am opposed to it, but I'm not willing to say "never." . . .
Q. . . . Can you give us an example of when you wouldn't vote [for mercy], maybe something you read?
A. No, actually, I can't. I haven't encountered any situation or ever been in any situation where I would vote for the death penalty.
RP (Apr. 4, 2001) at 32-33.
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Brown, 132 Wn.2d at 602 -03 (affirming exclusion of juror who said, "I don't think I could. It would have to be so crystal clear. It would just have to be . . . .").
¶22 We find no manifest abuse of discretion in excluding any of the challenged jurors.
2. PREMEDITATION INSTRUCTION
[8]¶23 Cross argues that he was effectively denied the benefit of his Alford plea because the jury was not specifically instructed that it could consider whether he actually premeditated these killings, but instead might have concluded from the fact he pleaded guilty to the crime that premeditation was a settled issue. We note that he does not seek to withdraw his guilty plea, but instead argues that the trial court's failure to give this instruction fatally taints the procedure. Cross did not request an instruction which would have put the issue squarely before the jury. This would normally weigh against review. Nonetheless, since this is a capital sentencing case, we will consider the substance of this claim. Benn , 120 Wn.2d at 660 ; Lord , 117 Wn.2d at 849 .«3»
¶24 Cross had good reason to believe he could argue lack of premeditation to the sentencing jury. The State specifically argued in support of Cross's Alford plea that the plea was to Cross's advantage in part because it "would enable him to continue to argue [a lack of premeditation and planning] in the mitigation or sentencing phase of [ ] trial." RP (Oct. 16, 2000) at 26-27. Additionally, the State contended that the benefit of being able to argue "that he should not be put to death because he did not plan these murders" was "substantial." CP at 1199. Cross now claims he was denied the benefits promised by the State as part of the plea process.
«3»Any ineffective assistance of counsel claim for failure to request such an instruction is not before us, and we express no opinion on it. Nor do we express any opinion on whether this was a proper grounds for Cross to withdraw his guilty plea.
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¶25 But Cross does not challenge the definition of premeditation given to the jury, and we note that Cross did argue extensively that he lacked premeditation.«4»We turn now to the specific challenges he does make.
A. Fourteenth Amendment
[9]¶26 Cross claims the lack of the premeditation instruction violated his Fourteenth Amendment rights by functionally entrapping him into entering a plea by an inducement that was never satisfied. Without, again, prejudging whether this argument has merit in the context of a motion to withdraw a plea or an ineffective assistance of counsel claim, we find no generalized constitutional error.
¶27 The State, under certain circumstances, may not assure a person that a right exists and then act contrary to that assurance without violating due process of law. See Raley v. Ohio , 360 U.S. 423, 79 S. Ct. 1257, 3 L. Ed. 2d 1344 (1959). In Raley , the Un-American Activities Commission of the Ohio Legislature summoned witnesses and assured them they could decline to answer questions that would tend to incriminate them. However, an Ohio statute immunized witness testimony, meaning self-incrimination was not possible as a matter of law. The witnesses declined to answer some questions and were subsequently convicted of contempt of the state legislature. Id. at 425. The United States Supreme Court reversed their convictions, concluding to do otherwise "would be to sanction an indefensible sort of entrapment by the State - convicting a citizen for exercising a privilege which the State had clearly told him
«4»The jury instruction stated:
Premeditated means thought over beforehand. When a person, after any deliberation, forms an intent to take human life, the killing may follow immediately after the formation of the settled purpose and it will still be premeditated. Premeditation must involve more than a moment in point of time. The law requires some time, however long or short, in which a design to kill is deliberately formed.
CP at 1986 (Jury Instruction 5). This is substantially similar to how we have defined premeditation in similar cases. Cf. State v. Pirtle , 127 Wn.2d 628 , 644, 904 P.2d 245 (1995) (quoting RCW 9A.32.020 (1)); State v. Gentry, 125 Wn.2d 570 , 597-98, 888 P.2d 1105 (1995).
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was available to him." Id. at 426. Cross argues he suffered a similar entrapment here. But this takes Raley far from its holding. The State did not prevent Cross from arguing he lacked premeditation. The State did not oppose a jury instruction that would have allowed Cross to put this matter clearly before the jury.«5»Any prejudice to Cross was not caused by the State's actions, a necessary predicate for a Raley error.
B. Eighth Amendment Claim
[10]¶28 Reduced to its essence, Cross argues that without a specific instruction allowing the jury to decide whether premeditation actually existed, the jury was unable to fully consider the mitigating evidence relating to premeditation. Cross relies upon the United States Supreme Court's holdings in Penry v. Lynaugh , 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989) ( Penry I) and Penry v. Johnson , 532 U.S. 782, 121 S. Ct. 1910, 150 L. Ed. 2d 9 (2001) ( Penry II).
¶29 In Penry I, the defendant challenged his capital sentence on the grounds the special jury instructions did not authorize the jury to consider the actual mitigating evidence presented (that he was abused as a child and suffered from mental retardation). Instead, the jury was limited to considering (1) whether the defendant acted deliberately, (2) whether the defendant was probably dangerous, and (3) whether the defendant acted out of proportion to the decedent's provocation. Penry I, 492 U.S. at 310.
¶30 Penry argued that he was denied his Eighth Amendment right to "an individualized assessment of the appropriateness of the death penalty," during which "the sentencer must be allowed to consider mitigating evidence." Id. at 316-17. The Supreme Court agreed. It concluded "that the jury was not provided with a vehicle for expressing its 'reasoned moral response' to [the mitigating] evi
«5»We are not asked to determine whether Cross was entitled to such an instruction, and, of course, we express no opinion on it.
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dence in rendering its sentencing decision." Id. at 328. The court reversed and remanded for resentencing. Id .
¶31 On remand, the jury was again instructed to answer the same three special verdict questions that had been found constitutionally inadequate, but it was also given the following supplemental instruction:
"You are instructed that when you deliberate on the questions posed in the special issues, you are to consider mitigating circumstances . . . . A mitigating circumstance may include, but is not limited to, any aspect of the defendant's character and record or circumstances of the crime which you believe could make a death sentence inappropriate in this case. . . . If you determine, when giving effect to the mitigating evidence, if any, that a life sentence, as reflected by a negative finding to the issue under consideration, rather than a death sentence, is an appropriate response to the personal culpability of the defendant, a negative finding should be given to one of the special issues ."
Penry II, 532 U.S. at 789-90 (emphasis added). The trial judge instructed the jury to lie on the special verdict form if it found sufficient grounds for mercy. For whatever reason, the jury answered "yes" to each of the special issues, and Penry was again sentenced to death.
¶32 Again Penry challenged the constitutional adequacy of the jury instructions. And again, the Supreme Court reversed his sentence because the jury was not provided a " 'vehicle for expressing its "reasoned moral response" to that evidence in rendering its sentencing decision.' " Penry II, 532 U.S. at 797 (quoting Penry I, 492 U.S. at 328). The court specifically found the nullification instruction constitutionally inadequate because "it made the jury charge as a whole internally contradictory, and placed law-abiding jurors in an impossible situation." Penry II, 532 U.S. at 799. It also explained that:
Penry I did not hold that the mere mention of "mitigating circumstances" to a capital sentencing jury satisfies the Eighth Amendment. Nor does it stand for the proposition that it is constitutionally sufficient to inform the jury that it may "con
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sider" mitigating circumstances in deciding the appropriate sentence. Rather, the key under Penry I is that the jury be able to "consider and give effect to [a defendant's mitigating] evidence in imposing sentence."
Penry II, 532 U.S. at 797 (alteration in original) (quoting Penry I, 492 U.S. at 319). The question is, then, whether we must reverse under the Penry standards, which require a meaningful avenue for the jury to consider mitigating evidence.
¶33 The State correctly notes that Cross could, and did, argue to the jury that he lacked premeditation and that he asked the jury to consider his state of mind. RP (Apr. 11, 2001) at 45. However, it does not necessarily follow that the jury was given an adequate vehicle for considering his mitigating evidence. In both Penry I and Penry II, the defendant was allowed to introduce evidence of his mental retardation and history of being abused. Yet, because of the limiting scope of the Texas special verdict questions, the juries could consider the mitigating evidence but not give effect to it, unless they were willing to falsify the verdict form.
¶34 Unlike the special verdict questions in the Penry cases, the instructions given to Cross's sentencing jury did not expressly or even impliedly limit the scope of the jury's inquiry. Instead, capital sentencing juries in Washington are instructed broadly that a mitigating circumstance is any fact "which in fairness or in mercy may be considered as extenuating or reducing the degree of moral culpability or which justifies a sentence less than death." CP at 1989 (Jury Instruction 8); see also 11 WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 31.07, at 357 (2d ed. 1994) (same); RCW 10.95.060 (4) (requiring juries to find "beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency" before returning a death penalty verdict). Nor was the jury here instructed to ignore
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the law if it found mercy warranted.«6»Instead, it was explicitly instructed to consider all mitigating factors.
¶35 Under the instructions given, the jury had a vehicle for expressing its reasoned moral response. Given this, we cannot say that the absence of an unrequested instruction violated Cross's Eighth Amendment rights.
3. REPRESENTATION
[11]¶36 Cross argues that he was effectively denied his right to counsel, largely on the grounds that he and his counsel disagreed about whether, and to what extent, his mental health should be an issue at sentencing. E.g., RP (Sept. 7, 2000) at 1-6. We review this question de novo, though we accord appropriate deference to the trial court's determination of the underlying facts. Cf. State v. Ramos, 83 Wn. App. 622 , 628-29, 922 P.2d 193 (1996) (quoting RPC 1.9(a)). We hold that this conflict did not amount to a violation of Cross's right to counsel.
[12-22]¶37 Prior to trial, Cross became increasingly opposed to the use of expert testimony regarding his mental health. E.g., CP at 2151. Even before Cross decided to plead guilty, he and his attorneys clashed over this strategy question. E.g., RP (Sept. 18, 2000) at 119. The trial judge was well aware of the conflict, and she considered whether to appoint new counsel several times. See, e.g., RP (Jan. 26, 2001) at 159-60, 184-87, 188; RP (Feb. 1, 2001) at 662; CP at 1899-94, 2163 (reviewing additional history of Cross's motions). After extensive briefing and argument, the trial judge ruled that whether mental health expert testimony
«6»We recognize that a law abiding jury might not have felt it could question an element of the underlying crime to which Cross pleaded guilt as a mitigating factor, notwithstanding the specific argument about it. However, we are not asked to decide whether he was entitled to such an instruction given the prosecution's assurances during the Alford proceedings or whether it was ineffective assistance of counsel to fail to request it. Cf. Clark v. Baines, 150 Wn.2d 905 , 84 P.3d 245 (2004). As presented, we are unable to determine whether any other rights held by Cross were violated and, of course, we express no opinion on unasked questions. Cf. Penry II, 532 U.S. at 799.
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would be used was a question of strategy for counsel. RP (Feb. 12, 2001) at 6-7.
¶38 Cross objected to the decision to present evidence of his poor mental health to the jury then, and he objects now. However, as Judge Joan E. DuBuque properly ruled, this is a strategy decision in the hands of defense counsel, not the client. State v. Piche, 71 Wn.2d 583 , 590, 430 P.2d 522 (1967) ("[T]he choice of trial tactics, the action to be taken or avoided, and the methodology to be employed must rest in the attorney's judgment."); see generally 3 WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE § 11.6, Counsel's Control Over Defense Strategy (2d ed. 2004) (collecting cases); accord United States v. Kaczynski , 239 F.3d 1108, 1118 (9th Cir. 2001).
¶39 While the details of strategy are generally for counsel to decide, not the client, defendants do have considerable control of their defenses. The Sixth Amendment ensures defendants' right to knowingly and voluntarily decline the assistance of counsel. See Faretta v. California, 422 U.S. 806, 807, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). This right has substantive implications for the attorney/client relationship. When the "relationship between lawyer and client completely collapses, the refusal to substitute new counsel violates the defendant's Sixth Amendment right to effective assistance of counsel," even if no actual prejudice is shown. In re Pers. Restraint of Stenson , 142 Wn.2d 710 , 722, 16 P.3d 1 (2001). However, there is a difference between a complete collapse and mere lack of accord. Cf. Morris v. Slappy , 461 U.S. 1, 13-14, 103 S. Ct. 1610, 75 L. Ed. 2d 610 (1983) (constitution does not require a "meaningful relationship" between attorney and client).
¶40 A defendant may not discharge appointed counsel unless the motion is timely and upon proper grounds. Restraint of Stenson, 142 Wn.2d at 732 -34. Generally, the client decides the goals of litigation and whether to exercise some specific constitutional rights, and the attorney determines the means. Cf. RPC 1.2(a) ("A lawyer shall abide by a client's decisions concerning the objectives of representa
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tion [and] shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify."); see also Martin Sabelli & Stacey Leyton, Train Wrecks and Freeway Crashes: An Argument for Fairness and Against Self Representation in the Criminal Justice System , 91 J. CRIM. L. & CRIMINOLOGY 161, 166 (2000) (strongly advocating "presentation of all evidence of mental disability relevant to determining criminal intent even if the client opposes this presentation.").
¶41 Cross frames this issue in three separate ways: that independent counsel should have been appointed to investigate the conflict, that there was an irreconcilable conflict between him and his attorneys, or that he should have been allowed to proceed pro se or with new counsel. When reviewing a trial court's refusal to appoint new counsel, we consider "(1) the extent of the conflict, (2) the adequacy of the [trial court's] inquiry, and (3) the timeliness of the motion." Restraint of Stenson, 142 Wn.2d at 724 (citing United States v. Moore, 159 F.3d 1154, 1158-59 (9th Cir. 1998)). Requests to proceed pro se must be timely and stated unequivocally. State v. Stenson, 132 Wn.2d 668 , 737, 940 P.2d 1239 (1997). Cross does not argue that a different test should be applied for the appointment of independent counsel or for conflict of interest, and we assume without deciding that the same analysis is appropriate. We generally review trial court decisions relating to attorney/client differences for abuse of discretion. See Stenson, 132 Wn.2d at 733 (citing State v. DeWeese, 117 Wn.2d 369 , 375-76, 816 P.2d 1 (1991)).
A. Extent of the Conflict
¶42 First, a conflict over strategy is not the same thing as a conflict of interest. Restraint of Stenson, 142 Wn.2d at 722 . In Stenson, counsel made the strategic decision, after the jury had convicted his client of murder, to concede his client's guilt while arguing to that same jury that his client deserved mercy. Stenson, however, wished to continue to
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assert his innocence through the sentencing phase of his capital trial. We held that this was a strategy decision in the hands of counsel and no right of Stenson had been compromised. Id. at 732.
¶43 Here, similarly, the conflict was only about trial strategy. Counsel clearly believed that given the overwhelming evidence that Cross had killed his family, the best or only defense available was to plead (in the guilt phase) that Cross was not guilty by reason of insanity, or lacked the ability to premeditate, or suffered from diminished capacity. Counsel also clearly believed that the best or only chance to persuade the jury to show mercy was on the basis of Cross's poor mental health. Cross did not want to move forward on this strategy, but, as trial judge noted, Cross frequently changed his mind. CP at 2149. The trial court conducted an extensive in camera hearing during a break from voir dire to determine whether the very real dispute between Cross and his counsel justified intervention. RP (Jan. 31, 2001) at 537-59; cf. Restraint of Stenson, 142 Wn.2d at 730 -37 (during similar hearing during voir dire, judge observed that aside from the conflict over strategy, defendant worked well with counsel).
¶44 While not determinative, the relationship between attorney and client does bear on whether representation has been irrevocably poisoned. Cf. Restraint of Stenson, 142 Wn.2d at 728 -29. Judge DuBuque, who had been involved in the case for 18 months and had ample opportunity to observe the relationship between counsel and Cross develop, noted that "every time you have been in court, I have observed a very good, positive attorney/client relationship." RP (Jan. 31, 2001) at 538-39; see also RP (Apr. 18, 2001) at 7-8 (judge noted for the record that "there has been . . . nothing but cordial calm conversation between counsel and their client."). Counsel concurred that their relationship with Cross was generally good. RP (Jan. 31, 2001) at 538; RP (Apr. 18, 2001) at 8. Cross acknowledged that he was able to communicate with his counsel, that "[t]hey are pretty easy going," and that he could work with
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them. RP (Jan. 31, 2001) at 540, 547. But he explained that he did not want the expert testimony on his mental health because:
I have never cared for the psychiatrists. . . . There is too much stuff pulled over them. I felt there was too much crap to believe the psychiatrists.
. . . .
I will live with this trial for the rest of my life. And I don't want a lie or communications like this that everyone wants to mount a defense, and it's a bunch of bull shit. From the beginning, all I wanted to do is plead guilty and get it over with.
. . . .
I think everybody suffers from depression at some time and that's no excuse for crime.
Id. at 540-41.«7»
¶45 This is not the type of conflict with counsel that raises Sixth Amendment concerns. Cf. Mickens v. Taylor, 535 U.S. 162, 172 n.5, 122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002) (actual conflict of interest could include attorney representation of a witness); Frazer v. United States, 18 F.3d 778, 785 (9th Cir. 1994) (conflict existed when attorney verbally assaulted client with racially derogatory term); Brown v. Craven, 424 F.2d 1166, 1169-70 (9th Cir. 1970) (perfunctory work can rise to cognizable conflict); accord Restraint of Stenson, 142 Wn.2d at 729 (fact that attorney and client disagreed over trial strategy not sufficient to find a cognizable conflict even after counsel testified that he "can't stand the sight of" his client). Instead, this is the type of conflict that courts generally leave to the attorney and client to work out, absent actual ineffective assistance of counsel. Cf. Kaczynski , 239 F.3d at 1118 (refusing to find plea involuntary even if it were motivated by defendant's desire not to have mental health evidence submitted to the jury).
«7»Cross would have limited the mitigation evidence to sleep deprivation, alcohol, financial stress, socioeconomic pressure, and his confession. RP (Jan. 31, 2001) at 542-43.
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¶46 Cross has not demonstrated a legally cognizable conflict giving rise to error.
B. Adequacy of the Trial Court's Inquiry
¶47 An adequate inquiry must include a full airing of the concerns (which may be done in camera) and a meaningful inquiry by the trial court. Restraint of Stenson, 142 Wn.2d at 731 . After careful review, we conclude Judge DuBuque's repeated inquiry was meaningful and full. RP (Jan. 31, 2001) at 537-59; RP (Feb. 12, 2001) at 2-10; RP (Feb. 27, 2001) at 19-33; CP at 2185-87. In one of these proceedings, the judge noted:
Mr. Cross himself has never expressed in any fashion whatsoever any dissatisfaction or the desire to have independent legal counsel, and you have given to the Court very cogent and compelling reasons as to why I should not take that step, which is the relationship of the long-term duration, as I indicated, every time you have been in the courtroom . . . there has been high quality representation, extremely high quality advocacy, and a good relationship before . . . .
I do not want to jeopardize what I see as a good working relationship when there is no expressed desire or need for the Court to do so.
RP (Jan. 31, 2001) at 548. The trial court was fully apprised of the conflict and again specially requested (and received) briefing on whether Cross or his counsel had the power to decide the mitigation strategy. Id. at 549; CP at 1899-1904. The judge made a careful review of the dispute and ruled that the strategic conflict between counsel and Cross was not the sort of conflict that required intervention. Cross has not shown any inadequacy in the inquiry.«8»
C. Request to Proceed Pro Se
¶48 A request to proceed pro se must be timely and unequivocal. Stenson, 142 Wn.2d at 737 . Cross's formal motion to proceed pro se was made on April 24, 2001, four
«8»We assume for the purpose of argument that his motion for appointment of new counsel was timely. We recognize that might not have been so.
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months into the trial, three days after the State had rested its case and after the defense had itself presented several witnesses. CP at 2149-50. Cross refused to assure the judge that he would refrain from outbursts in court. CP at 2152. The court found that granting the motion would cause a considerable delay and that delay was Cross's purpose. CP at 2153 (citing State v. Fritz, 21 Wn. App. 354 , 585 P.2d 173 (1978)). Either finding was an adequate basis for denying a motion to proceed pro se. Fritz, 21 Wn. App. at 363 -65. Cross has not shown the trial judge abused her discretion.
¶49 Again, strategy decisions are for the attorney. In this case, the very real conflict between counsel and client was about strategy. Until and unless the disagreement about strategy actually compromises the attorney's ability to provide adequate representation, strategy differences do not violate any constitutional rights held by defendants. We affirm.
4. GUILTY PLEA
[23-26]¶50 Cross's counsel argues that Cross should not have been allowed to waive his right to plead not guilty by reason of insanity, or, to state the same challenge a different way, that Cross's plea was not knowing, voluntary, and intelligent because it was predicated in part on Cross's incorrect belief that he could stop presentation of mental health evidence by pleading guilty. We disagree.
¶51 The gravamen of Cross's challenge was considered above. We briefly touch on the issue in this context. While counsel wields enormous power within the scope of representation of a client, the goals of litigation remain in the client's hands. Competent defendants have "the absolute right to plead guilty," as long as the plea is knowing, intelligent, and voluntary. State v. Jones, 99 Wn.2d 735 , 741, 743, 664 P.2d 1216 (1983); see also Faretta, 422 U.S. at 835. Cross does not challenge Judge DuBuque's decision that he was competent, and he does not seek to withdraw his plea. Instead, he essentially asks this court to substitute
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its judgment for the trial judge's, withdraw Cross's plea for him, and impose a not guilty by reason of insanity plea upon him. We decline to do so.
¶52 Before Judge DuBuque accepted Cross's guilty plea, she was required to, and did, conduct a detailed inquiry and assured herself that Cross was fully informed of the alternatives available to him, that he understood the consequences, and that he freely chose to waive his insanity defense. See Jones, 99 Wn.2d at 745 (quoting Frendak v. United States , 408 A.2d 364, 380 (D.C. Cir. 1979)); see also RCW 10.77.060 (1)(a) (authorizing trial court to sua sponte order a competency hearing). "A defendant is competent to stand trial if he is able to appreciate the nature of the proceedings and to assist with his defense," and, again, competent defendants can disagree with their counsel. Benn, 120 Wn.2d at 662 ; Lord , 117 Wn.2d at 901 . Cross was explicitly found to be competent, and his decision to withdraw his plea appears to have been intelligent and voluntary. RP (Sept. 19, 2000) at 33-35; CP at 2146, 2156-62.
¶53 This was Cross's decision to make. He was informed time and time again of the risks and made his own assessment. Before rendering her decision, Judge DuBuque had an extensive conversation with Cross to assure herself he was fully aware of the gravity of the decision. RP (Sept. 19, 2000) at 1-33; CP at 2144-47. Cross has not shown error.
5. CONTROL OF MITIGATION EVIDENCE
[27]¶54 Similarly, Cross argues that his constitutional rights were violated when the trial judge allowed expert testimony relating to his mental health to be presented to the jury over his clear and repeated objections. We disagree. Again, counsel has broad authority to determine strategy, even over the client's objections.
¶55 Substantially similar arguments were recently considered by the Ninth Circuit in Kaczynski , 239 F.3d 1108. Kaczynski argued that his guilty plea was involuntary on the grounds that it was the result of his counsel's insistence
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on presenting evidence of Kaczynski's poor mental health, and the trial judge's refusal to allow him to proceed pro se or with alternate counsel. Kaczynski, 239 F.3d at 1110. The Ninth Circuit rejected Kaczynski's arguments. Emphasizing that the decision of what evidence to present was a strategy decision vested in the hands of the attorney. Kaczynski, 239 F.3d at 1118.
[28]¶56 Again, the client controls the goals of litigation. See RPC 1.2. A competent defendant may forbid counsel to put on a mitigation case if his goal is to have the death penalty imposed. E.g., State v. Woods, 143 Wn.2d 561 , 23 P.3d 1046 (2001); State v. Sagastegui, 135 Wn.2d 67 , 954 P.2d 1311 (1998). However, Cross apparently did not wish to be put to death. Once he has decided the goal, the strategy is largely in the hands of his attorneys.
[29-31]¶57 Cross also argues that his attorney/client and doctor/patient privileges were violated when his counsel called mental health experts who had interviewed him on the stand to testify. He analogizes this to the prosecution calling defense counsel to the stand to testify about confidential communications. Cf. State v. Sullivan, 60 Wn.2d 214 , 217-18, 373 P.2d 474 (1962) (reversing conviction after prosecution was allowed to examine defense counsel). Generally, communications made to a doctor or psychologist are confidential. RCW 5.60.060 ; RCW 18.83.110 ; Sullivan, 60 Wn.2d at 223 . However, only communications originally made in confidence are so privileged. State v. King, 130 Wn.2d 517 , 532, 925 P.2d 606 (1996). Examinations that are not done for the purpose of providing treatment, but instead solely for forensic purposes, are "not within the statutory testimonial prohibitions of the doctor-patient privilege." Sullivan, 60 Wn.2d at 223 (citing State v. Winnett , 48 Wash. 93 , 92 P. 904 (1907)). While a trial court may (and should) properly redact or exclude incriminating statements, such experts may testify about the mental health of the defendant when it is put into controversy by the defense. See, e.g., State v. Brewton, 49 Wn. App. 589 , 591-92, 744 P.2d 646 (1987) (trial court properly gave the State access to mental
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health records when the defendant raised diminished capacity defense).
¶58 We note that Cross relies on cases where the State has attempted to question defense experts outside of the trial context. In this case, the defense experts were put on by the defense. Cf. State v. Nuss, 52 Wn. App. 735 , 742, 763 P.2d 1249 (1988). We have found no court that held that a client's privileges were violated by his own counsel putting on such evidence.
[32-34]¶59 Traditionally, the presentation of mental health testimony largely waives the right to keep mental health information privileged. See generally State v. Pawlyk, 115 Wn.2d 457 , 800 P.2d 338 (1990). Whether to present this evidence is vested in the hands of defense counsel. While there is considerable academic support (and opposition) to allowing the client to veto the presentation of this evidence, courts have uniformly held that this is counsel's decision, absent ineffective assistance of counsel. See generally LAFAVE ET AL ., supra . Holding that the client could prevent the presentation of this evidence in the penalty stage would be a significant change in the law. Cross has not shown that change is warranted.
¶60 Additionally, Cross argues that Superior Court Special Proceeding Rule (SPRC) 5 authorizes him to control whether mental health evidence may be submitted in the penalty phase. This rule provides that:
Within 24 hours after a jury returns a verdict finding a defendant guilty of aggravated murder in the first degree, the court will require the defendant to elect whether he or she may present expert testimony at the special sentencing proceeding concerning his or her mental condition.
SPRC 5(g). Cross contends that this rule vests the decision in the hands of the defendant personally, rather than in the hands of the defense team. However, he submits no evidence that SPRC 5 was intended to change the general rule that counsel decides whether to submit mental health evidence, not the client, nor whether this rule could have made such a sweeping change to the law as formulated.
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¶61 We hold that the trial court did not err in allowing expert testimony to be submitted as mitigating evidence over Cross's pro se objections.«9»
6. UNANIMITY
[35, 36]¶62 Cross challenges several jury instructions on the grounds that they improperly pressured the jury to return a unanimous verdict. Though Cross did not challenge these instructions below, we will nonetheless consider his claims. See Lord , 117 Wn.2d at 849 . Claimed instructional errors are reviewed de novo and read in context. Brown, 132 Wn.2d at 605 . We conclude that Cross has not established error.
[37]¶63 The jury was instructed that:
As jurors, you have a duty to discuss the case with one another and to deliberate in an effort to reach a just verdict . Each of you must decide the case for yourself, but only after you consider the evidence impartially with your fellow jurors. During your deliberations, you should not hesitate to re-examine your own views and change your opinion if you become convinced that it is wrong. However, you should not change your honest belief as to the weight or effect of the evidence solely because of the opinions of your fellow jurors, or for the mere purpose of returning a verdict.
CP at 1990 (Instruction 9) (emphasis added). The verdict form itself continued:
Having in mind the crimes 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?
ANSWER:
[ ] "YES" (In which case the defendant shall be sentenced to death
«9»Cross also argues that counsel's decision to admit mental health testimony was ultimately prejudicial to him, as it opened the door to evidence that did not show him in the best light. Nothing in this opinion should be read to foreclose reconsideration of this claimed prejudice in the context of an ineffective assistance of counsel claim. We express no opinion on the viability of that claim.
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[ ] "NO" (In which case the defendant shall be sentenced to life imprisonment without the possibility of release or parole)
[ ] "NO UNANIMOUS AGREEMENT" (In which case the defendant shall be sentenced to life imprisonment without the possibility of release or parole)
CP at 2011. Both are identical to the pattern jury instructions. 11 WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 31.06, at 355, 362 (2d ed. 1994).
¶64 Cross argues that this wording essentially instructed the jury that a nonunanimous decision is not a verdict. He also specifically challenges the verdict form for not combining "no" and "no unanimous agreement." We have substantially rejected this argument already in In re Personal Restraint of Benn, 134 Wn.2d 868 , 931-32, 952 P.2d 116 (1998) (evaluating similar instruction, noting that "nothing in the court's instructions said or implied that the defendant could avoid the death penalty only if the jury unanimously answered 'no.' "); accord Rupe II, 108 Wn.2d at 763 (affirming similar jury instruction against similar challenge).
¶65 This language suggests that unanimity is a goal to be strived toward, not a requirement for a verdict. We want juries to deliberate, not merely vote their initial impulses and move on. Given that the verdict form specifically allowed the jury to select "not unanimous," any theoretical flaw would not have misled the jury into believing that rendering a unanimous verdict was their duty. Further, the trial judge clearly and repeatedly instructed the jury that a unanimous verdict was required to sentence the defendant to death, and a nonunanimous verdict would result in a life sentence. E.g., RP (Feb. 28, 2001) at 4-5; RP (Apr. 4, 2001) at 5. Cross has not demonstrated error.
7. COMMON SCHEME OR PLAN
¶66 Cross argues the trial judge erred when she declined to give an instruction defining common scheme or plan. We find no error.
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[38]¶67 Claimed errors in jury instructions are generally reviewed de novo. Brown , 132 Wn.2d at 605 . However, it is within the sound discretion of the trial court to determine the appropriateness of granting a request to define words of common understanding. Id . at 612. Trial courts must define technical words and expressions but not those that are self-explanatory or within ordinary understanding. Id . at 611-12.
[39]¶68 Cross submitted an instruction that would have defined "common scheme or plan." That jury instruction was substantially similar to one we approved in State v. Kincaid, 103 Wn.2d 304 , 692 P.2d 823 (1985). In Kincaid, the defendant killed his wife and her sister with a shotgun and attempted to kill himself. The trial judge instructed the jury in part that:
"The term 'common scheme or plan' means that there was a connection or nexus between the murders and the victims thereof. A scheme or plan is a design, method of action, or system formed to accomplish a purpose."
Id. at 314 (quoting jury instruction 28).«10»While we recognized that the language was awkward, we concluded that the instruction was not erroneous.
¶69 However, upholding an instruction given is different from requiring an instruction be given. We have held repeatedly that "common scheme or plan" are words of common understanding requiring no definition. Brown , 132 Wn.2d at 612 ; Benn , 120 Wn.2d at 674 ; State v. Jeffries, 105 Wn.2d 398 , 420, 717 P.2d 722 (1986); State v. Guloy , 104 Wn.2d 412 , 417, 705 P.2d 1182 (1985); accord State v. Pirtle , 127 Wn.2d 628 , 661-62, 904 P.2d 245 (1995) (holding "common scheme or plan" is not unconstitutionally vague).
¶70 While the trial court could have given the definition, we find no abuse of discretion in declining to do so.
«10»Cross's proposed instruction was nearly identical:
The term "common scheme or plan" means that there was a connection or nexus between the murders and the victims thereof. The scheme or plan is [a] design, method of action, or system formed to accomplish a purpose.
CP at 1789.
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8. SUPPRESSION OF PHOTOGRAPHIC EVIDENCE
¶71 Cross challenges the admission of crime scene photos on the grounds they were taken before a warrant was received. We affirm.
[40]¶72 Five minutes after Cross was arrested, and before obtaining a warrant, the police reentered the house accompanied by medics. CP at 332, 424; RP (Apr. 17, 2000) at 65. The officers confirmed that the victims were dead and took photographs of the crime scene. CP at 331-32. A telephonic warrant was approved about three hours later. Id. It was not based on any information collected during the second entry into the house. CP at 1099. Cross argues that the police exceeded their authority in this second entry, going beyond what is necessary under the "medical emergency" exception to the warrant requirement. The trial court ruled the evidence admissible, and this court reviews for abuse of discretion. CP at 1103; Stenson , 132 Wn.2d at 701 .
[41]¶73 First, generally, a defendant who pleads guilty waives appeal "to errors committed prior to arraignment, including an illegal search or seizure." 13 ROYCE A. FERGUSON, JR., WASHINGTON PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 3718, at 101 (2004). However, if the error amounts to a violation of due process, it "may constitute a ground for appeal, where, for example, the defendant claims his guilty plea was involuntary [or] from the court's refusal to withdraw a plea of guilty." Id. at 102. Cross does not argue either. Nonetheless, we will consider his claim.
[42, 43]¶74 Generally, photographs taken by police of a crime scene will be admissible so long as the entry was lawful. State v. Wright , 61 Wn. App. 819 , 824, 810 P.2d 935 (1991); cf. Commonwealth v. Ehrsam, 355 Pa. Super. 40, 52, 512 A.2d 1199 (1986). Under the medical emergency exception to the Fourth Amendment, police may make a warrantless entry into a home as long as the entry is motivated, both subjectively and objectively, by the officer's belief that there is a "need to render aid or assistance." State v.
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Loewen , 97 Wn.2d 562 , 568, 647 P.2d 489 (1982) (citing State v. Prober, 98 Wis. 2d 345, 365, 297 N.W.2d 1 (1980), overruled on other grounds by State v. Weide , 155 Wis. 2d 537, 455 N.W.2d 899 (1990)).
¶75 Cross argues that the exception does not apply because, based on his stepdaughter's statements to the 911 operator, the officers knew that the victims were dead, and therefore, beyond aid or assistance. But under the circumstances, the police and rescue workers reasonably decided not to rely on the report of a distraught 13-year-old and confirmed that the victims were beyond their aid. CP at 1101; see also RP (Apr. 17, 2000) at 65-66, 75, 93-94. We find no abuse of discretion in admitting the pictures.
9. CUSTODIAL INTERROGATION
¶76 Cross challenges the admission of several statements he made after he received the Miranda «11»warning, on the grounds he had indicated he wanted questioning to cease. We find no error.
[44, 45]¶77 If the accused "indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease." Miranda, 384 U.S. at 473-74. Cross made many statements to police that were admitted into evidence, most notably an extended interview with Detective Doyon the day of the killings. RP (Apr. 17, 2000) at 16; CP at 1217. Before Cross entered his guilty plea, the trial judge ruled all of his statements admissible. CP at 1353, 1360. Several of the statements he made during this interview were used in the sentencing phase. E.g., RP (May 8, 2001) at 31, 48. On appeal, his appellate counsel challenges admission. We review the decision to admit the statements for abuse of discretion. Stenson , 132 Wn.2d at 701 .«12»
«11» Miranda v. Arizona, 384 U.S. 436, 473-74, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
«12»The trial judge's written order states that defense counsel conceded that the interview with Detective Doyon was properly admissible. We assume this is a scrivener's error; counsel did vigorously contest admissibility. CP at 359-77. The record is somewhat ambiguous because a concession appears, but read in context it was probably limited to a concession that if Cross's statements were admissible, a transcript of a taped session was admissible. RP (May 1, 2000) at 28.
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[46]¶78 We will recount only a few of the statements, which are representative. After Cross was taken to the police station, he was read his Miranda rights by Detective Doyon. CP at 1218. The following exchange was captured on tape:
Det: DAVID, you have the right to remain silent. Do you understand that? . . . I have to ask you to speak up a little more, so [the tape recorder wi]ll pick it up, okay?
Cross: Yea. I understand my fuckin' rights.
Det: Okay.
Cross: I don't have no fuckin' rights from [now] on. Behind fuckin' bars the rest of my life, I don't give a fuck.
CP at 1316. Detective Doyon continued to go through the Miranda warning, with Cross acknowledging each element of it on tape. CP at 1316-18. At the conclusion, Detective Doyon asked if Cross would talk to him. The following colloquy occurred:
Det: [With] these rights in mind, do you wish to talk to me?
Cross: About what?
Det: Well, I wanna ask you ah, some general questions.
CP at 1318. Cross answered some questions, and declined to answer others, in a somewhat equivocal fashion. For example, when asked if he had drank a bottle of wine that day, he replied "I don't know man. I just told [you] that it's . . . . Quit asking me some of the fuckin' things, man, will ya?" "You're askin' me too much. My life is over, I don't give a fuck." CP at 1319.
¶79 The trial court properly found that Cross's equivocal protests had not effectively asserted his right to remain silent. CP at 1359. Selective responses to police questioning will function as a waiver of that right. State v. Wheeler, 108 Wn.2d 230 , 238, 737 P.2d 1005 (1987).«13»
«13»While Cross was meeting with his attorney, he was overheard stating loudly: "I don't give a fuck. The motherfuckers are dead. I killed them. My life is over." CP at 1348. After noting that the statement was clearly audible outside of the conference room, the trial court ruled this admissible. CP at 1353. Given that Cross is not seeking to withdraw his plea, we do not reach whether this was an abuse of discretion.
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[47, 48]¶80 Further, a guilty plea forecloses appeal except for validity of the statute, sufficiency of the information, jurisdiction of the court, or circumstances surrounding the plea. State v. Saylors, 70 Wn.2d 7 , 9, 422 P.2d 477 (1966). Broadly construed, Cross is challenging the circumstances surrounding his plea. However, given that he does not seek to withdraw his plea, any defect in the circumstances would have to be striking to be cognizable.
[49]¶81 Instead, Cross argues that the alleged search and seizure errors, and the alleged violation of his Miranda rights, together resulted in cumulative error, denying him a fair trial. See State v. Coe, 101 Wn.2d 772 , 789, 684 P.2d 668 (1984) (numerous errors, harmless standing alone, can deprive a defendant of a fair trial); see generally United States v. Necoechea , 986 F.2d 1273 (9th Cir. 1993). Even assuming that admitting statements made to his attorney and overheard by police were error, there was insufficient error to deny him a fair trial. See State v. Greiff, 141 Wn.2d 910 , 929, 10 P.3d 390 (2000). We affirm.
10. CONSTITUTIONALITY OF WASHINGTON'S DEATH PENALTY
¶82 Cross makes several challenges to the constitutionality of Washington's death penalty. He argues that the death penalty in Washington is effectively standardless and that our proportionality review does not properly police the use of the penalty. He especially draws our attention to the life sentence of Gary Ridgway and to the United States Supreme Court's decision in Bush v. Gore, 531 U.S. 98, 121 S. Ct. 525, 148 L. Ed. 2d 388 (2000).
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A. "Freakish and Wanton" Application and Gary Ridgway
[50-52]¶83 Since Cross's trial, the Green River Killer, Gary Ridgway, was caught, prosecuted, and sentenced to life in prison. We cannot begin to calculate the harm his abhorrent murders caused. The fact he will live out his life in prison instead of facing the death penalty has caused many in our community to seriously question whether the death penalty can, in fairness, be proportional when applied to any other defendant.
¶84 We do not minimize the importance of this moral question. But it is a question best left to the people and to their elected representatives in the legislature. Under the United States Constitution (the only constitution pleaded here), Washington's death penalty is constitutional and nothing about Gary Ridgway changes that.
¶85 It may be that there will always be aberrations like Ridgway. We do not believe that these horrific aberrations make a statute unconstitutional. We look at the entirety of first degree aggravated murder prosecutions, not just at whether any particular case is within an order of magnitude of the worst we have known. RCW 10.95.120 .
¶86 We do not agree with those who say that no rational explanation exists for Gary Ridgway escaping a death sentence and Dayva Cross not. See generally Matthew R. Wilmot, Note, Sparing Gary Ridgway: The Demise of the Death Penalty in Washington State? 41 WILLAMETTE L. REV . 435 (2005). Ridgway was spared because a highly respected, honorable, and thoughtful prosecutor made the decision to stay the hand of the executioner in return for information that would otherwise have died some midnight within the walls of the state penitentiary. The information received in return for a life sentence allowed so many families to, at long last, know what happened to their loved ones. While many may disagree with that prosecutor's decision, no one should deny that it was highly rational.
¶87 Under Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), and its progeny, the death
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penalty is constitutional only if it is properly constrained to avoid freakish and wanton application. See generally Gregg v. Georgia, 428 U.S. 153, 169, 173, 189, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976). To be constitutionally valid, "where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action." Gregg, 428 U.S. at 189. We have repeatedly held that our statutes meet this standard. They properly constrain prosecutorial discretion in seeking the death penalty; they properly direct the jury to consider appropriate factors; and they provide for meaningful mandatory appellate review in every case. See Brett, 126 Wn.2d at 210 -11; State v. Rupe, 101 Wn.2d 664 , 697-701, 683 P.2d 571 (1984) ( Rupe I); cf. In re Pers. Restraint of Brown, 143 Wn.2d 431 , 460, 21 P.3d 687 (2001).
¶88 Our proportionality review is only one way Washington State law prevents arbitrary and capricious application of the death penalty. Other statutory protections may be just as effective.
¶89 First, the death penalty may only be sought in the most egregious of killings. RCW 10.95.020 . This limitation does much to constrain the possibility of arbitrary and capricious application. Second, the prosecutor is instructed to seek the death penalty only when "there is reason to believe that there are not sufficient mitigating circumstances to merit leniency." RCW 10.95.040 (1). That requires the prosecutor to consider seriously whether, in any particular case, it would be inappropriate to seek the sentence at all. Third, the State bears the heavy burden of convincing all 12 jurors that the death penalty is appropriate. RCW 10.95.060(4). Unanimity sets a high threshold. Fourth, Washington juries are informed that if they do not recommend a death sentence, the defendant will automatically be sentenced to life in prison without the possibility of parole. RCW 10.95.030 (1), .080(2). This assures the jurors that if they exercise mercy, a brutal killer will not someday be set
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free. Fifth, the jurors are asked whether they are "convinced beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency." RCW 10.95.060(4). This gives the defense considerable opportunity to plead for mercy on any theory they can conceive or that the facts support. Sixth, jurors are specifically instructed to consider eight separate, but nonexclusive, criteria in decidding whether mercy is warranted. RCW 10.95.070 . This ensures that jurors' will have their attention drawn to specific reasons to exercise mercy. Seventh, we collect data on all death-eligible convictions. RCW 10.95.120 . This allows us and other interested parties to analyze the actual patterns and practices of capital sentencing. Finally, the legislature has directed this court to review all death sentences, whether or not the defendant would otherwise appeal, to independently review the evidence supporting a death sentence, and to determine whether the sentence is disproportionate. RCW 10.95.100 , .130. Should a death penalty be the result of arbitrary and capricious conduct, the defendant will have a meaningful opportunity to get relief from the highest court in the state.
¶90 Ridgway's abhorrent killings, standing alone, do not render the death penalty unconstitutional or disproportionate. Our law is not so fragile. But his killings are not irrelevant to our analysis and will be considered as part of our statutorily mandated review of every future death penalty case.
B. Bush v. Gore
[53]¶91 Cross also argues that the statute delegates too much authority to local prosecutors to decide who is eligible for the death sentence. This is a variant of arguments made to this court many times. E.g., Benn, 120 Wn.2d at 667 (rejecting argument and collecting cases); Rupe I, 101 Wn.2d 664 (grant of discretion to prosecutors does not result in standardless application); cf. Gregg, 428 U.S. 153 (affirming constitutionality of Georgia's death penalty).
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¶92 Since we decided these cases, the United States Supreme Court has looked disapprovingly at the various exercises of discretion by county officials in applying state law. See Bush, 531 U.S. 98. In Bush, the Supreme Court halted ballot recounts that would have been done under procedures outlined by the individual counties. The court explicitly stated it was not deciding whether counties could have different standards, but whether a state supreme court with the power to mandate uniformity erred in failing to require uniformity. Id. at 109. While the Supreme Court attempted to severely limit the scope of its holding, id., it has obvious implications every time state law vests discretion in the hands of county officials. It is clear to us that counties in Washington do have different standards for when they seek the death penalty, given the distribution of cases across the state.
¶93 But we have already found that this prosecutorial discretion does not offend equal protection.
[T]he grant of discretion to prosecutors does not result in a standardless death penalty statute. The court may assume that prosecutors exercise their discretion in a manner which reflects their judgment concerning the seriousness of the crime or insufficiency of the evidence. Consequently, the prosecutor's decision not to seek the death penalty, in a given case, eliminates only those cases in which juries could not have imposed the death penalty. We believe that this analysis accurately portrays the function prosecutorial discretion plays in our death penalty statute. This discretion is not unconstitutional.
Rupe I, 101 Wn.2d at 700 ; accord State v. Campbell, 103 Wn.2d 1 , 26, 691 P.2d 929 (1984).
¶94 On the other hand, underlying Bush is the principle that regularity in some things is too important to leave to the discretion of county officials. Reasonably, it is more important to establish regularity in the imposition of the death penalty than the method of recounting ballots. Mistakes made in the former are permanent and irreversible, while mistakes in the latter have only a temporary effect that can be corrected. When this court decided previous
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cases, this principle had not been so clearly pronounced. E.g., Rupe I, 101 Wn.2d at 700 .
¶95 However, at this time, we decline to apply the principles annunciated in Bush outside of election law. The Supreme Court clearly indicated it did not intend application outside of that narrow realm. Bush, 531 U.S. at 109. There are good reasons to vest this discretion in the hands of local officials in the local area. Cross has not established that doing so here was constitutional error.«14»
11. STATUTORY REVIEW
¶96 The legislature has directed the court to review every death penalty to ensure that it meets statutory standards. We must decide:
(a) Whether there was sufficient evidence to justify the affirmative finding to the question posed by RCW 10.95.060 (4) ["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?"]; 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. For the purposes of this subsection, "similar cases" means cases reported in the Washington Reports or Washington Appellate Reports since January 1, 1965, in which the judge or jury considered the imposition of capital punishment regardless of whether it was imposed or executed, and cases in which reports have been filed with the supreme court under RCW 10.95.120 ;
(c) Whether the sentence of death was brought about through passion or prejudice.
«14»Additionally, Cross argues that the United States Supreme Court's current capital case jury selection jurisprudence is unconstitutional. We leave it in the able hands of the United States Supreme Court to determine whether their death qualification jurisprudence needs additional scrutiny. Based on existing precedents, we cannot so conclude ourselves.
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RCW 10.95.130 (2). For ease of analysis we will first consider his sufficiency arguments before turning to the statutory factors of his other challenges.
A. Sufficiency
[54-56]¶97 Cross argues that there was insufficient evidence to support his death sentence. He also argues more specifically that there was insufficient evidence of premeditation or of a common scheme or plan to justify the verdict. We review the evidence "in the light most favorable to the prosecution" to determine whether "any rational trier of fact could have found sufficient evidence to justify that conclusion beyond a reasonable doubt." Brown, 132 Wn.2d at 551 . We find sufficient evidence.
¶98 i. Premeditation. Cross was never found guilty beyond a reasonable doubt and did not plead guilty unconditionally. He specifically denied in his plea both premeditation and the existence of a common scheme or plan. CP at 1651-56. At the time the plea was entered, the prosecution had no direct evidence that Cross premeditated the murders. The trial judge merely concluded that there could have been enough evidence to find premeditation based on her review of the facts. RP (Oct. 23, 2000) at 191-92.
¶99 Our review of the evidence shows sufficient circumstantial evidence to uphold the trial judge's decision. See generally CP at 1212-1625 (evidence submitted in support of plea). Cross killed three people with two knives. He stabbed one stepdaughter 22 times. RP (May 8, 2001) at 34-36. Multiple blows are strong evidence of premeditation. See State v. Clark, 143 Wn.2d 731 , 769, 24 P.3d 1006 (2001). Furthermore, the trial court conducted a searching review of the evidence before accepting the Alford plea. See RP (Oct. 23, 2000) at 5-191. She reviewed evidence from which a rational trier of fact could find premeditation: the location and severity of the wounds, the evidence of domestic violence leading up to the murders, the planning and use of the murder weapons, the evidence of secondary assault, the
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statements made by Cross to the surviving victim, and the evidence of forced entry. Id .
¶100 Cross was not prevented from arguing lack of premeditation, and it was an issue at the sentencing phase. E.g., RP (Apr. 11, 2001) at 27 (State's opening statement asserting that Cross acted with premeditation); id. at 45 (defendant's opening statement denying premeditation). There was sufficient evidence for a jury to have found (or not found) premeditation.«15»
¶101 ii. Common Scheme or Plan. Similarly, Cross argues that there was insufficient evidence that the killings were committed pursuant to a common scheme or plan, and therefore, his death sentence must be vacated and the case returned for a rehearing. See RCW 10.95.020 (10) (making "common scheme or plan" an aggravator). We disagree. There was sufficient evidence of a common scheme or plan for the trial judge to accept the guilty plea and sufficient evidence for a jury to find common scheme or plan beyond a reasonable doubt.
[57]¶102 A common scheme or plan exists when there are multiple murders with a nexus connecting them, such as an overarching purpose. State v. Finch , 137 Wn.2d 792 , 975 P.2d 967 (1999). " 'A scheme or plan is a design, method of action, or system formed to accomplish a purpose' " Kincaid , 103 Wn.2d at 314 (quoting jury instruction 28). Sophisticated preplanning is not required; the State must only prove an "overarching" plan with a criminal purpose that connects the murders, not that the defendant premeditated to kill multiple or named victims or to kill victims for the same reason. Pirtle , 127 Wn.2d at 663 ; Finch , 137 Wn.2d at 835 .
¶103 In Pirtle , we affirmed that a common scheme existed where the defendant had planned to rob and kill one
«15»Again, we note that Cross was not precluded by his Alford plea from raising the argument. A holding that he can avoid the sentence because of his plea would frustrate the clear intent of the statutes in play. An ineffective assistance of counsel claim is the proper forum for considering whether he was entitled to, and prejudiced by the lack of, a premeditation instruction.
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employee at Burger King in revenge for being fired. We found that the second murder of another employee who was working at the time was sufficiently connected to the overarching plan. Pirtle, 127 Wn.2d at 663 . Similarly in Finch, we held the jury could have found the killings were part of a common scheme where the defendant's actions and statements prior to and during the murder indicated that with premeditation he had killed his ex-wife, her male friend, and anyone else who "got in the way." Finch , 137 Wn.2d at 836 ; see also Guloy , 104 Wn.2d at 418 .
¶104 Cross distinguishes his case from those where the court has found a defendant guilty of executing an overarching criminal plot, such as murdering victims during a robbery ( Pirtle ), theft ( Jeffries v. Wood, 114 F.3d 1484 (9th Cir. 1997)), rape ( Woods ), or burglary ( Finch ). While it is true that most of these defendants killed while pursuing other criminal goals, the definition of "common scheme" does not require that the overarching criminal plan be other than murder itself. RCW 10.95.020 (11) provides a separate aggravating factor for a murder committed while carrying out another felony. This suggests that RCW 10.95.020 (10) was designed to apply to situations where the defendant killed multiple victims for one purpose.
¶105 There was sufficient evidence of a common scheme or plan. Cross killed three people at nearly the same time, with the same weapons, in the same home.
[58, 59]¶106 iii. Overall Sufficiency . Any relevant evidence that " 'in fairness and mercy, may be considered as extenuating or reducing the degree of moral culpability' " is admissible and must be considered by the jury before it may render a verdict. State v. Bartholomew , 101 Wn.2d 631 , 647, 683 P.2d 1079 (1984) (quoting BLACK'S LAW DICTIONARY 903 (5th ed. 1979)), appeal after remand, 104 Wn.2d 844 , 710 P.2d 196 (1985), judgment rev'd on alternate grounds sub nom. Wood v. Bartholomew , 516 U.S. 1, 116 S. Ct. 7, 133 L. Ed. 2d 1 (1995). "The mere presence of mitigating factors does not require that the jury grant leniency, if the jurors are convinced that the circumstances of the crime outweigh
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the mitigating factors." State v. Dodd , 120 Wn.2d 1 , 25, 838 P.2d 86 (1992) (citing State v. Rice, 110 Wn.2d 577 , 624, 757 P.2d 889 (1988)).
¶107 In this case, Cross offered four mitigating factors: his near-lack of criminal history, the "extreme mental disturbance" he was under at the time, the fact he was unlikely to be a danger to others in the future, and his underlying mental disease or defect. RP (Apr. 11, 2001) at 48. A jury could have granted him mercy based on these factors. However, Cross also brutally killed three family members and held a child against her will for many hours. RP (May 8, 2001) at 34-36. Additionally, there was evidence that Cross had a history of domestic violence. RP (Apr. 21, 2001) at 41. There was sufficient evidence submitted to justify the jury's verdict.
B. Proportionality
¶108 We must decide "[w]hether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." RCW 10.95.130 (2)(b). We compare this case to other death eligible cases. RCW 10.95.120 .
[60]¶109 We recognize that the court's approach to this analysis has taken many forms. Ten years ago, Chief Justice Barbara Durham identified six separate approaches that had been taken in recent memory. See Brett, 126 Wn.2d at 214 -16 (Durham, C.J., concurring). However, the goal has remained the same, and the evolution of the analysis has not undermined the purpose of the review. The goal is to ensure that the sentence, in a particular case, is proportional to sentences given in similar cases; is not freakish, wanton, or random; and is not based on race or other suspect classifications. See generally Furman, 408 U.S. 238; Stenson, 132 Wn.2d at 758 . Our approach will continue to be refined over time and will vary depending on the particulars of the cases before the court.
[61-63]¶110 At a minimum, we will consider: (1) the nature of the crime, (2) the aggravating circumstances, (3)
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criminal history, and (4) personal history. Pirtle, 127 Wn.2d at 686 ; but cf. Sagastegui, 135 Wn.2d at 92 . We will also consider substantive challenges to the proportionality of the sentence, as raised. Cf. State v. Elledge , 144 Wn.2d 62 , 80, 26 P.3d 271 (2001); State v. Harris, 106 Wn.2d 784 , 798, 725 P.2d 975 (1986).
¶111 i. Nature of the Crime . We begin by comparing the specifics of this crime with other death eligible crimes. E.g., Brown, 132 Wn.2d at 556 . Cross killed his wife and two family members. Counsel calls our attention to at least 22 similar cases where the defendant received life in prison, including cases that were arguably objectively worse that resulted in a life sentence. E.g., State v. Blackwell , No. 96-1-00676-3 (Snohomish County Super. Ct. June 24, 1996) (defendant shot and killed his pregnant wife and two companions in the King County Courthouse).
¶112 Cross's counsel asserts that the only intrafamily killing that has actually resulted in the death penalty was Clark Elmore, who "brutally raped and tortured his stepdaughter" before killing her. State v. Elmore , 139 Wn.2d 250 , 308, 985 P.2d 289 (1999). They are correct that the death penalty, historically, has not often been sought in these cases. See, e.g., State v. Price, No. 01-1-04749-5 (Pierce County Super. Ct. Aug. 9, 2002) (killed mother of his child; death penalty not sought); State v. Washington, No. 94-1-01997-1 (Pierce County Super. Ct. May 22, 1995) (solicited accomplices to kill mother; death penalty not sought); State v. Allen, No. 00-1-00235-9 (Cowlitz County Super. Ct. Oct. 30, 2002) (killed mother, death penalty not sought); State v. Hacheney, No. 01-1-01311-2 (Kitsap County Super. Ct. Feb. 7, 2003) (pastor killed wife, death penalty not sought); contra Stenson , 132 Wn.2d 688 (husband killed wife and business partner: State sought, and jury returned, death sentence).
¶113 However, the fact that state prosecutors may be changing their assessment of whether domestic violence resulting in death warrants seeking a capital sentence does not render the death penalty in this case disproportional.
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Again, the touchstone is whether the penalty in a particular case is freakish and wanton or given for a forbidden reason. Changing assessments are not necessarily freakish, wanton, or forbidden.
¶114 Death sentences have been received in other cases with few victims. In Woods, this court found the death sentence proportional when the defendant killed two acquaintances with whom he had had a prior relationship. Woods, 143 Wn.2d at 616 . In Stenson, the defendant killed his wife and business partner. Stenson, 132 Wn.2d at 759 . While Elledge did not kill family members, he killed a long term acquaintance and fellow church member. Elledge, 144 Wn.2d at 66 .
¶115 There was a marked level of cruelty in this case. At least one of Cross's victims was conscious and pleaded with him to either spare her life or kill her more quickly. RP (May 8, 2001) at 34-36. A " 'brutal murder involving substantial conscious suffering of the victim makes the murderer more deserving of the death penalty.' " Elledge, 144 Wn.2d at 81 (quoting Stenson, 132 Wn.2d at 759 ) (citing State v. Gentry, 125 Wn.2d 570 , 657, 888 P.2d 1105 (1995)). On the other hand, we recognize that the death penalty has not been sought in cases at least as brutal. State v. Kennedy , No. 02-1-00511-9 (Skagit County Super. Ct. Oct. 28, 2002) (stabbed victim more than 100 times); State v. Ridgway, No. 01-1-10270-9 SEA (King County Super. Ct. Dec. 18, 2003) (defendant killed at least 48 and probably more than 60 women, mostly by strangling immediately after sexual intercourse); State v. Webbe, No. 00-1-04416-6 SEA (King County Super. Ct. Jan. 27, 2003) (defendant raped and stabbed woman to death; death penalty not sought); State v. Thornton, No. 98-1-00493-6 (Benton County Super. Ct. Jan. 6, 1999) (shot, beat with rocks, and stabbed victim).
¶116 Our society is losing its tolerance for domestic violence. We cannot say the prosecutor's decision to prosecute, and the jury's decision to sentence, were disproportionate based on the nature of the crime and its resemblance to other death eligible crimes.
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¶117 ii. Aggravating Circumstances . Here, we are not merely looking for the number of aggravators but, more importantly, at the nature of the aggravating circumstances. Cf. Elledge , 144 Wn.2d at 81 ; Brown, 132 Wn.2d at 558 ; see also Kennedy , No. 02-1-00511-9 (two aggravators, death penalty not sought); State v. Kinney, No. 98-1-01049-8 (Whatcom County Super. Ct. Jan. 14, 2002) (four aggravators, death penalty not sought); State v. Garrett, No. 02-1-00264-2 (Chelan County Super. Ct. Feb. 24, 2003) (three aggravators; death not sought).
¶118 We recognize that many defendants who received a life sentence had the same single aggravator of a common scheme or plan. Most notoriously, Gary Ridgway. Ridgway, No. 01-1-10270-9 SEA (defendant killed at least 48 women over many years); see also State v. Cruz, No. 00-1-00284-6 SEA (King County Super. Ct. Mar. 25, 2002).
¶119 In this case, the aggravating factor was the murder of multiple victims as part of a common scheme or plan. This was sufficient to meet the statutory qualification. However, in this case, it does not weigh for or against a decision that the penalty is proportional.
[64]¶120 iii. Criminal History . Cross had only one prior conviction. While most of those sentenced to death had significant criminal histories, a lack of significant criminal history does not render the sentence disproportional. Elmore, 139 Wn.2d at 309 -10 (collecting cases); Elledge, 144 Wn.2d at 82 -83 (collecting cases and noting five death sentences were found proportional for defendants with little or no criminal history); but see Price, No. 01-1-04749-5 (trial judge specifically noted death penalty not sought because of lack of criminal history); State v. Chea, No. 98-1-03157-5 (Pierce County Super. Ct. June 28, 2002); Allen, No. 00-1-00235-9.
¶121 We cannot say, based on this, that the death penalty is disproportionate given Cross's relative lack of criminal history.
[65]¶122 iv. Personal History. Cross's personal history contains elements that both tend to support the jury's
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verdict and argue in favor of mercy. However, abusive childhood and medically diagnosed personality disorders (that do not rise to the level of competence-destroying mental illness) do not necessarily render a death penalty disproportionate, though they are certainly grounds for the jury to show mercy. Brown, 132 Wn.2d at 559 ; Pirtle, 127 Wn.2d at 668 ; Dodd, 120 Wn.2d at 11 ; Lord, 117 Wn.2d at 906 ; Rice, 110 Wn.2d at 592 -96.
[66]¶123 v. Gary Ridgway . We recognize that Ridgway brutally murdered at least 48 women (and possibly many more), over decades, often returning to rape their corpses, and yet was spared the death penalty under a plea bargain. We also recognize that the people of Washington gained considerable benefits from this plea bargain. It resolved the tragedy of many unsolved deaths and disappearances that probably would have otherwise remained unsolved forever. Families were spared the agony of unknowing and the rigors of testimony. See Statement of Norm Maleng, attached to Ridgway, Trial Judge Report, No. 01-1-10270-9 SEA.
¶124 Gary Ridgway is but a single case, an instance of what we hope were unique and horrible crimes. Each death sentence is the product of unique circumstances. The issue before us is whether the sentence of death for Cross is disproportionate to the penalty imposed in similar cases. Ridgway, standing alone, is not sufficient reason to find capital sentences always disproportionate.
C. Passion or Prejudice
¶125 Cross argues that his sentence was brought about after counsel appealed to the passions and prejudices of the jury. We disagree.
[67]¶126 We will vacate sentences that were the product of appeals to the passion or prejudice of the jury, such as "arguments intended to 'incite feelings of fear, anger, and a desire for revenge' and arguments that are 'irrelevant, irrational, and inflammatory . . . that prevent calm and dispassionate appraisal of the evidence.' " Elledge , 144
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Wn.2d at 85 (quoting BENNETT L. GERSHMAN, TRIAL ERROR AND MISCONDUCT § 2-6(b)(2), at 171-72 (1997)). Calling the defendant a liar, implying witnesses are not believable because they were from out of town, and asserting that the State would give the defendant a gun and send him down the elevator with the jury if they acquitted are all improper appeals. Elledge, 144 Wn.2d at 85 (collecting cases). Nothing like that was present here.
[68]¶127 Cross argues that the extrinsic evidence submitted regarding his single prior crime was as inflammatory as the extrinsic evidence that led this court to reverse the death penalty in Clark, 143 Wn.2d at 780 -81. However, in Clark, the trial court allowed a police officer to testify about the details of Clark's prior conviction during the State's sentencing case in chief. Id. at 777-78. The trial judge had excluded this testimony as inadmissible during the guilt phase but believed the standards for evidence supporting aggravating factors was looser during the sentencing phase. Id. This was error; under Pirtle, only the fact of the conviction and the elements of the offense are admissible in the State's sentencing case in chief. The police officer's testimony went far beyond the facts of the conviction and the elements of the crime. His assertion that the defendant preyed on " 'the weak and the small' " was clearly inflammatory. See Clark, 143 Wn.2d at 782 (quoting trial record).
¶128 Cross also argues that the mental health evidence was used in an inflammatory way to convince the jury that Cross was extraordinarily dangerous. However, he does not identify specifically what testimony or argument he believed appealed to the jury's passion or prejudice, and our review of the record has not identified anything that stands out.
¶129 We find no improper appeals to the passions or prejudices of the jury.
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D. Methodological Challenges
¶130 Cross also challenges the methodology of our pro- portionality review. How to properly perform proportional ity review, and upon what data, is a reoccurring, vexing problem in capital case jurisprudence across the nation. See generally State v. Loftin, 157 N.J. 253, 724 A.2d 129 (1999) (reviewing history and variations of proportionality review; suggesting sophisticated methodologies are necessary; finding expert assistance necessary); see also Timothy V. Kaufman-Osborn, Capital Punishment, Proportionality Review, and Claims of Fairness (With Lessons From Washington State) , 79 WASH. L. REV . 775 (2004) (cogently criticizing current proportionality review); Bruce Gilbert, Comparative Proportionality Review: Will the Ends, Will the Means , 18 SEATTLE U. L. REV . 593, 613 (1995). Federal courts have consistently emphasized that any proportionality review must be conducted consistent with the due process clause. See Palmer v. Clarke , 293 F. Supp. 2d 1011, 1040 (D. Neb. 2003) (citing Kilgore v. Bowersox, 124 F.3d 985, 995 (8th Cir. 1997)). With that in mind, we turn to his specific challenges.
¶131 i. Comparative Cases . Cross notes that in nearly every case where this court has found the penalty was proportional, the verdict or conviction was later vacated or overturned. See Br. of Appellant at 220-21 (listing 16 cases where a death sentence has been vacated). He argues that this dramatically skews the sample group. He notes that in In re Personal Restraint of Brett, 142 Wn.2d 868 , 880-83, 16 P.3d 601 (2001), this court acknowledged that Brett's representation was so poor that the sentence might have been different, which also renders the case seriously subject to doubt.
[69]¶132 The legislature has directed this court to review "[w]hether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." RCW 10.95.130(2)(b). While this is not without doubt, we believe the legislature intended us to consider whether a death sentence is disproportional based on other sentences imposed, not other sentences executed.
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¶133 We recognize that federal cases frequently speak of the administration of capital punishment, not merely the sentencing. E.g., Callins v. Collins, 510 U.S. 1141, 1155-57, 114 S. Ct. 1127, 127 L. Ed. 2d 435 (1994) (Blackmun, J., dissenting). As administered, the universe of capital cases with which to compare Cross's sentence is very different. It consists of only four men; three of which effectively elected not to contest the penalty of death. However, based on the statutory language itself and absent a clear challenge to the constitutionality of the universe of comparison, we will use as a base line capital sentences rendered by juries, not capital sentences executed.
¶134 ii. Completeness of the Database . This court is directed to have a complete database of critical factors relating to death eligible crimes, whether or not the death penalty was sought. RCW 10.95.120 . We recognize that our database of comparable cases has not been timely and faithfully updated by trial courts as required by the statute and contains many omissions. Many reports were filed years late and are missing data on everything from ethnicity to the mental health of the defendant. See State v. Mason, No. 01-1-03569-6 SEA (King County Super. Ct. July 28, 2003); Chea, No. 98-1-03157-5; State v. Sayasack, No. 94-1-02000-7 (Pierce County Super. Ct. May 22, 1995); State v. Allison, No. 94-1-01999-8 (Pierce County Super. Ct. Apr. 10, 1995); State v. Carter, No. 97-1-02261-6 (Pierce County Super. Ct. Sept. 21, 1998); State v. Roberts , No. 00-1-00259-8 (Clallam County Super. Ct. Nov. 14, 2002); Garrett, 02-1-00264-2; Hacheney, No. 01-1-01311-2. At least one trial judge expressed palatable anguish in his inability to provide this court with a completed report, based on counsel's failure to assist the judge in gathering the data. See State v. Lambert, 97-8-00224-7 (Grant County Super. Ct. Dec. 10, 1997).
[70]¶135 Trial judge reports serve as the basis for the Supreme Court's proportionality review of convictions for first degree aggravated murder. Cross argues that the failure of the trial courts to provide timely and reliable
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reports to the Supreme Court undermines the credibility of the proportionality review.
¶136 We recognize the gravity of the charge. However, we must decide whether Cross is entitled to relief on this basis. We conclude he is not, at least absent a credible showing that these failures have caused him some injury.
¶137 The database is now overwhelmingly complete. There is an ample amount of detail we can use to compare this case with the others collected, and we have no reason to think that the omitted reports would not be consistent with the completed ones.
[71, 72]¶138 iii. Standards . Again, Cross charges that our proportionality review is essentially standardless. We have previously considered and rejected this argument. Brown, 132 Wn.2d at 554 ; Pirtle, 127 Wn.2d at 685 -86; Gentry , 125 Wn.2d at 654 -58; Lord , 117 Wn.2d at 909 -11; see also Benn , 120 Wn.2d at 699 (Utter, J., dissenting).
¶139 We recognize that a federal court has found our review to be constitutionally inadequate under Furman , 408 U.S. 238, because it did not meaningfully police the application of the death penalty. Harris ex rel. Ramseyer v. Blodgett, 853 F. Supp. 1239, 1288-91 (W.D. Wash. 1994), aff'd sub nom. Harris ex rel. Ramseyer v. Wood , 64 F.2d 1432 (9th Cir. 1995). Specifically, the federal courts found that: (1) the statute does not define what cases are "similar" or whether the court can consider additional factors, (2) there is no notice to defendant about which cases the court will treat as similar, (3) the statute provides no alternate procedure when no similar cases are found, (4) the statute does not provide a standard for reviewing the similar cases, and (5) the sentence review has no established fact finding procedure. Harris, 853 F. Supp. at 1288-91. However, we have already considered and rejected the federal court's criticism. See Restraint of Benn, 134 Wn.2d at 925 -26, habeas corpus granted on other grounds sub nom. Benn v. Wood, 2000 LEXIS 12741 (W.D. Wash. 2000), aff'd sub nom. Benn v. Lambert, 283 F.3d 1040 (9th Cir. 2002).
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This "disproportionality" review is not subject to the challenges raised by Brett and those upheld in Harris v. Blodgett, supra . Using the legislative definition of "similar cases" alleviates the due process concerns expressed in Harris v. Blodgett, supra. Refocusing the review to ascertain only whether a death sentence is wanton and freakish based upon the broad range of aggravated murder cases provides a more reliable and justifiable standard of "disproportionality" and renders negligible the effect of slight deviations in the universe of "similar cases". The function of the review is limited to providing "additional assurance" that a sentence is not disproportionate, rather than ensuring proportionality in the first instance. See Gregg , 428 U.S. at 206-07. That function is inherent in the guidelines contained in RCW 10.95. In addition, this method of review does not require the parties or the court to ascertain, in essence, mathematical proportionality. There is no constitutional or statutory requirement to ensure an unattainable degree of identity among particular cases which are invariably unique.
Brett, 126 Wn.2d 212 -13. Accordingly, we need not define "similar cases" with scientific precision because we have no statutory obligation to derive a narrow definition. The legislature has not instructed us otherwise.
¶140 iv. Counties. Cross also argues that the death penalty is flawed because it is imposed by only wealthy counties. However, he did not submit sufficient evidence in support of these claims for us to analyze that challenge at this time. We note that funds are available to reimburse counties prosecuting such cases if the legislature so directs. RCW 43.330.190 , .200.
¶141 We hold there was sufficient evidence to support the verdict, that the verdict was proportional, and that it was not the product of passion or prejudice.«16»
CONCLUSION
¶142 This case requires that we decide whether the State may deliberately and lawfully take this man's life.
«16»Amicus American Civil Liberties Union has requested we appoint a special master to review these matters further. Without a greater showing of necessity, we decline to do so at this time.
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Such decisions rank high among the most difficult and important that any judge, or any juror, will ever make. Our review is limited to determining whether Cross has demonstrated reversible error in the State's exercise of its power to take life, not whether, as individuals, we agree or disagree with the people's decision to keep death as the ultimate punishment for crime.
¶143 We affirm the trial court's decision to excuse the four jurors from the jury pool. Cross has not established he was denied the benefit of his Alford plea by the lack of an unsought premeditation instruction. The trial court properly accepted Cross's Alford plea. He has not shown his right to representation was denied by the strategy differences between him and his counsel, nor that he should have been appointed new counsel or allowed to proceed pro se. Evidence about Cross's mental health was properly presented to the jury. The jury was not improperly pressured into unanimity. The trial judge properly declined to instruct the jury on the meaning of common scheme or plan and properly admitted the challenged photographic evidence and out of court statements made by Cross. Cross has not established that the Washington death penalty is unconstitutional. We find that the sentence of death is proportional and meets statutory standards.
¶144 Accordingly, we affirm Dayva Cross's sentence of death.
ALEXANDER, C.J.; BRIDGE and FAIRHURST, JJ.; and IRELAND, J. Pro Tem., concur.
¶145 ALEXANDER, C.J. (concurring) - The majority opinion lavishes praise on the "highly respected, honorable, and thoughtful" prosecutor who negotiated an agreement whereby he did not seek the death penalty against Gary Ridgway in exchange for the serial killer providing certain information. Majority at 622. With equal fervor, the dissent asserts that there was "nothing rational" about the prosecutor's plea deal with Ridgway. Dissent at 648 n.24.
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¶146 This court should refrain from commenting on the qualities of individual prosecutors, as that is a matter properly within the purview of the public and not justices. Ridgway's sentence, and the considerations that led to the sparing of his life, are not before us. Therefore, while I concur with the majority's result, I write separately simply to express my view that both the majority and dissenting opinions needlessly and improperly delve into matters of prosecutorial discretion. While we may have personal views about controversies beyond our docket, such views do not belong in the decisions announced by this court.
FAIRHURST, J., concurs with ALEXANDER , C.J.
¶147 C. JOHNSON, J. (dissenting) - The majority abandons any rational attempt to fulfill our statutory responsibility to conduct a proportionality review, effectively rendering the statutory duty meaningless. Properly recognizing and analyzing what has happened in the administration of capital cases in this state inevitably leads to the conclusion that the sentence of death in this case, and generally, is disproportionate to the sentences imposed in similar cases. Contrary to what we had expected to find when we established an analytical framework to conduct our statutory review, that the worst of the worst offenders would be subject to the death penalty, what has happened is the worst offenders escape death. When Gary Ridgway, the worst mass murderer in this state's history, escapes the death penalty, serious flaws become apparent. The Ridgway case does not "stand alone," as characterized by the majority, but instead is symptomatic of a system where all mass murderers have, to date, escaped the death penalty.
¶148 Our task in conducting a proportionality review as provided under RCW 10.95.130 (2)(b) requires us to determine "[w]hether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." "Similar cases" is defined within the statute as all "cases reported in
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Washington Reports or Washington Appellate Reports since January 1, 1965, in which the judge or jury considered the imposition of capital punishment regardless of whether it was imposed or executed, and cases in which reports have been filed with the supreme court under RCW 10.95.120 ." RCW 10.95.130 (2)(b). RCW 10.95.120 requires the trial court to file a report "[i]n all cases in which a person is convicted of aggravated first degree murder." Thus, the pool of cases we review includes all aggravated murder convictions. One commonality exists in these cases: they are all the worst existing crimes. Proportionality review is intended to provide a basis to explain how a sentence of death rationally compares to the other cases in the pool. Reviewing the history of this court's proportionality review reveals how the administration of capital cases defies any rational analysis.
¶149 Since the enactment of the statute in 1981, our proportionality jurisprudence has embodied many analytical forms. We first characterized the objective of proportionality review on appeal as "to assure that 'wholly arbitrary, capricious, or freakish sentences' are minimized." State v. Campbell , 103 Wn.2d 1 , 30 n.2, 691 P.2d 929 (1984) (quoting Pulley v. Harris , 465 U.S. 37, 45, 104 S. Ct. 871, 79 L. Ed. 2d 29 (1984)). However, even with this goal in mind, we did not articulate the method by which we were to minimize the imposition of arbitrary or freakish sentences through this proportionality review. In conducting our proportionality review in Campbell , we found no other case where four aggravating factors were present. Thus, rather than comparing Campbell's case with "similar cases" as required under the statute, we concluded that these circumstances "would, with great frequency prompt a jury to impose the death penalty." Campbell , 103 Wn.2d at 30 .
¶150 Shortly after Campbell , in State v. Jeffries , 105 Wn.2d 398 , 717 P.2d 722 (1986), we concluded that proportionality review under RCW 10.95.130 (2)(b) does not include cases where the prosecutor did not seek the death penalty. We compared Jeffries' sentence of death with the
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sentences imposed in four other cases: State v. Rupe ,«17» State v. Bartholomew ,«18» State v. Hawkins ,«19»and State v. Quinlivan .«20»Without significant explanation, we concluded that "[t]hese four cases strongly establish that the death penalty here is not disproportionate." Jeffries , 105 Wn.2d at 430 .
¶151 In State v. Harris , 106 Wn.2d 784 , 798, 725 P.2d 975 (1986), we noted that the proportionality statute provides "little guidance to determine at what point a death sentence becomes proportionate or disproportionate." However, we turned to Georgia's interpretation of its own proportionality statute, which is identical to Washington's statute, as a useful guideline. The test for proportionality in Georgia is to determine whether death sentences have been imposed "generally" in similar cases.
"[T]his court is not required to determine that less than a death sentence was never imposed in a case with some similar characteristics. On the contrary, we view it to be our duty under the similarity standard to assure that no death sentence is affirmed unless in similar cases throughout the state the death penalty has been imposed generally and not 'wantonly and freakishly imposed,' . . . ."
Harris , 106 Wn.2d at 798 (quoting Moore v. State , 233 Ga. 861, 864, 213 S.E.2d 829 (1975)). We adopted this standard and have generally employed it in our subsequent proportionality reviews.
¶152 In 1987, contrary to what we said in Jeffries , we included in the pool of comparable cases all cases in which the defendant was convicted of first degree aggravated murder. In State v. Rupe, 108 Wn.2d 734 , 743 P.2d 210
«17»101 Wn.2d 664 , 683 P.2d 571 (1984) (death penalty imposed where defendant killed two people during a robbery with two aggravating factors present) ( Rupe I).
«18»101 Wn.2d 631 , 683 P.2d 1079 (1984) (death penalty imposed where defendant killed one victim with two aggravating factors present).
«19»70 Wn.2d 697 , 425 P.2d 390 (1967) (death penalty imposed where defendant was convicted of murdering two children).
«20»81 Wn.2d 124 , 499 P.2d 1268 (1972) (death penalty imposed where defendant killed two people).
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(1987) ( Rupe II) we stated, " 'similar cases' include cases where the defendant was convicted of first degree aggravated murder regardless of whether the death penalty was sought" and imposed. 108 Wn.2d at 767 . Rupe II represented a significant step in our proportionality review. In that case, we singled out a number of cases that presented at least two of the three aggravating factors present in the case before us. After comparing Rupe's case with eight other cases,«21»we concluded that "we do not find any characteristics about Rupe's crime, nor a lack of characteristics found in similar crimes, which suggest that the death penalty is excessive or disproportionate in Rupe's case." Rupe II, 108 Wn.2d at 769 -70.
¶153 In State v. Lord , 117 Wn.2d 829 , 907-14, 822 P.2d 177 (1991), we reviewed the history, impetus, and purpose of the proportionality statute. Acknowledging again that there is no clear test or guidance given to the court in the text of the statute, we concluded that our proportionality statute serves to prevent caprice in deciding whether to impose the death penalty, and, while not constitutionally required, it "provides a safeguard against arbitrarily imposed death sentences." Lord , 117 Wn.2d at 908 . In this process, however, we did not require precise uniformity. "Our review is not intended to ensure that there can be no variation on a case-by-case basis, nor to guarantee that the death penalty is always imposed in superficially similar circumstances." Lord , 117 Wn.2d at 910 . We characterized our comparison of similar cases as a search for "family resemblances." Lord , 117, Wn.2d at 911.
¶154 In State v. Benn , 120 Wn.2d 631 , 678-93, 845 P.2d 289 (1993), we conducted the most extensive search for first degree aggravated murder cases. After a survey of 31 cases from the trial court reports, we selected a pool of compa
«21»In four cases the defendant received the death penalty, in two cases where the death sentence was sought the defendant received life without parole, in one case the prosecution did not seek the death penalty, and in one case a defendant was sentenced to life without parole after pleading guilty.
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rable cases in the same "genus or family" as Benn's«22»and concluded that this group of similar cases did not contain an arbitrary frequency of life without parole sentences over the death sentence.
¶155 In State v. Brett , 126 Wn.2d 136 , 212, 892 P.2d 29 (1995) (conviction vacated and remanded in In re Pers. Restraint of Brett , 142 Wn.2d 868 , 16 P.3d 601 (2001)), we characterized proportionality review as providing "a 'check' or 'additional assurance' against arbitrary imposition of the death penalty." We noted our struggle in the past in conducting proportionality review and attributed this difficulty to attempting to define "similar cases" without adopting standards requiring mathematical identity. Additionally, we acknowledged that we had struggled to define what makes a case proportional. We stated that proportionality review continues to broaden in approach, and we focused on two systemic problems in death sentences: random arbitrariness and sentences based on the defendant's race.
¶156 In State v. Pirtle , 127 Wn.2d 628 , 687, 904 P.2d 245 (1995), rev'd in part and remanded in part sub nom. Pirtle v. Morgan , 313 F.3d 1160 (9th Cir. 2002), we abandoned Lord 's "family resemblance" test, stating the approach "grew somewhat unwieldy as more and more cases were reported" and "the result was dependant on the cases selected" for comparison. In proportionality review, "we assume [cases] can be arrayed on a rough continuum from least serious to most serious, considering the nature of the crime and any mitigating factors." Pirtle , 127 Wn.2d at 686 . When determining whether Pirtle's death sentence was excessive or disproportionate to the penalty imposed in similar cases, we articulated the proper review as follows:
In reviewing an individual case, we look for disproportionality. We are not concerned with whether a given crime can be matched with one or more of the fifteen other death
«22»Of the 31 cases the court surveyed, it rejected from the pool those cases in which the death penalty was not sought because the cases were not in the same "genus or family," and the court rejected cases exhibiting extremely brutal crimes. Benn , 120 Wn.2d at 692 .
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penalties. Instead, our job is to weed out those cases in which the crime and the defendant's mitigation most closely match the less serious of the 129 cases which did not result in a death sentence .
Pirtle , 127 Wn.2d at 686 (emphasis added). In considering the defendant and the crime, we employed four factors in our examination: (1) the nature of the crime, (2) the aggravating factors, (3) the defendant's criminal history, and (4) the defendant's personal history.
¶157 In State v. Elmore , 139 Wn.2d 250 , 308, 985 P.2d 289 (1999) (quoting State v. Brown , 132 Wn.2d 529 , 555, 940 P.2d 546 (1997)), we reaffirmed that our objective in proportionality review is to determine whether "death was imposed ' generally in similar cases, and not imposed wantonly and freakishly .' " Unlike our review in Pirtle , however, we stated that "[i]f the facts of Elmore's case are similar to some of the facts taken from cases in which the death penalty was upheld, the proportionality review is satisfied." Elmore , 139 Wn.2d at 308 . We then employed the four factors set out in Pirtle to analyze the defendant and the crime in relation to similar cases, comparing Elmore's case to only those cases in which the death penalty was imposed. Six of the cases we relied on for proportionality review had previously been vacated on appellate review. However, we stated that our reliance on these cases was appropriate because none of them was overturned based on proportionality.
¶158 In State v. Elledge , 144 Wn.2d 62 , 79-80, 26 P.3d 271 (2001), we again rejected the argument that we should include only cases in which the death penalty was ultimately affirmed in our review of "similar cases," relying on Elmore . In Elledge , the defendant was convicted of first degree aggravated murder for strangling and stabbing a woman after binding her wrists and ankles, and the jury imposed the death penalty. In comparing the nature of the crime with other "similar cases," we stated that "Elledge's crime was at least as vicious and brutal as others in which the death penalty was imposed," relying on Rupe , Benn ,
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and Harris . Elledge , 144 Wn.2d at 81 . Although there was only one aggravating factor present, we did not find Elledge's case disproportionate on this basis, citing to State v. Gentry ,«23» Harris , and Benn in which the death penalty was upheld where one aggravating factor was found. Elledge had an extensive criminal record, including one first degree murder conviction, which we found to be "among the most extensive of any within the pool of similar cases." Elledge , 144 Wn.2d at 83 . No mitigating factors were presented.
¶159 Despite the different analytical forms we have employed in our proportionality review since the enactment of RCW 10.95.130 (2)(b) in 1981, the ultimate objective of our search for "similar cases" has consistently been to achieve our statutory mandate to determine "[w]hether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases." In accomplishing this task, we must put a particular case in context; our review is to assure us that the sentence of death is somehow quantifiable or comparable in view of all the other cases where the sentence of death was imposed or where an individual was convicted of first degree aggravated murder. In executing this comparative review, as stated in Pirtle , we expect to find that our pool of comparable cases can "be arrayed on a rough continuum from least serious to most serious, considering the nature of the crime and any mitigating factors." 127 Wn.2d at 686 .
¶160 Since chapter 10.95 RCW was enacted, four people convicted of aggravated murder in the first degree have been sentenced to death and executed. Three of the individuals executed chose not to pursue the avenues of appeal available to them. In addition, one individual who had been sentenced to death committed suicide while incarcerated. Several individuals are currently sitting on death row awaiting the exhaustion of their appeals. There are ap
«23»125 Wn.2d 570 , 888 P.2d 1105 (1995). In Gentry , the defendant was sentenced to death for the murder of a 12 year old girl. One aggravating factor found was murder to conceal the identity of the defendant.
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proximately 268 trial court reports on file with this court for individuals convicted of first degree aggravated murder.
¶161 As stated above, from our discussion in Pirtle , we assume the individuals sitting on death row constitute the far end of the spectrum, representing the most serious offenders who committed the most atrocious crimes in our state. However, a review of the current pool of cases reveals serious problems with the administration of our state's capital cases. Contrary to what we expected to find in the "spectrum" of serious cases, we now see that the most serious offenders either pleaded guilty and escaped the death penalty or were not sentenced to death by a jury.
¶162 Gary Ridgway is the most prolific serial killer in our state's history. In 2003, he pleaded guilty to 48 counts of first degree aggravated murder. He killed mainly prostitutes and runaways, often strangling them, dumping their bodies to return later to rape their corpses. Ridgway's plea was part of an agreement forged with prosecutors in which he agreed to help locate the remains of the women he killed in order to escape the death penalty. He was sentenced to life without the possibility of parole.«24»
¶163 If the Ridgway case was the only case at the far end of the spectrum, perhaps his penalty of life in prison rather than death could be explained or dismissed. Ridgway, however, is not the only case in which a mass murderer escaped death. Benjamin Ng killed 13 people, resulting in 13 convictions of first degree aggravated murder. The aggravating factors found in his case were: the murders were part of a common scheme or plan, there was more than one victim and the murders were committed in the course of a robbery. Ng hog-tied his victims prior to shooting them execution style. Mitigating factors presented to merit leniency were diminished capacity, Ng's youth, and lack of a prior criminal record. The jury could not unanimously agree
«24»The majority praises the prosecutors in the Ridgway case as "highly respected, honorable, and thoughtful" and calls the plea agreement "highly rational." Majority at 622. In fact, this is little more than misplaced condescension. There is nothing rational about the prosecutors' decision here not to seek the most serious of penalties for one who has committed the most heinous of crimes.
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to impose the death penalty, and Ng was sentenced to life in prison without the possibility of parole.
¶164 In addition to Ridgway and Ng, who were not initially sentenced to death, over the course of time an overwhelming number of the cases we have relied on as "similar cases" where death was imposed for the purposes of proportionality review have been vacated on appeal. The death penalty has not been imposed on remand in any of these cases even though a number of them constitute the most atrocious crimes by the most serious offenders. Since the enactment of the existing death penalty statute in 1981, juries have imposed the penalty of death in 31 cases where an individual was convicted of first degree aggravated murder. However, in 19 of those 31 cases the conviction or sentence has been vacated by either the Washington State Supreme Court or by federal courts. In at least 13 cases, the individual was resentenced to life without the possibility of parole on remand.«25»Several cases are still pending in superior courts. One of the 19 individuals was released,«26»and one committed suicide.«27»Even though our previous cases have relied on cases where the death penalty was not reimposed, the fact remains that these cases are, or should be, placed at the far end of the most extreme crimes for purposes of our comparison. These cases no longer involve the death penalty.
¶165 Among those retried and sentenced to life without parole are two individuals convicted of killing three or more persons. Kwan Fai Mak, Ng's codefendant, committed 13 murders and was sentenced to death in the sentencing phase of his first trial. However, Mak was sentenced to life without the possibility of parole after his sentence was vacated and a new sentencing proceeding was held. David L. Rice was convicted of four counts of first degree aggra
«25»Dwayne Bartholomew; Gary Benn; James Brett; Michael M. Furman; Patrick Jeffries; Brian Lord; Sammie L. Luvene; Kwan Fai Mak; Henry L. Marshall, III; Blake Pirtle; David L. Rice; Michael K. Roberts; Mitchell Rupe.
«26»Benjamin Harris.
«27»Charles B. Finch.
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vated murder. His conviction and sentence of death were overturned by the Ninth Circuit Court of Appeals, Rice v. Wood , 44 F.3d 1396 (9th Cir. 1995). Rice subsequently pleaded guilty and was sentenced to life without the possibility of parole. Again, the State elected not to seek the death penalty on remand.
¶166 Robert Yates pleaded guilty to 13 counts of premeditated first degree murder, not aggravated murder, in Spokane County pursuant to an agreement with prosecutors. Yates pleaded guilty in order to escape the death penalty. Like Ridgway, Yates was a serial killer who preyed on prostitutes. He hired prostitutes for sex then shot them in the head and stole their money. In addition to his convictions in Spokane County, Yates was later convicted of two counts of first degree aggravated murder in Pierce County where the prosecutor sought and the jury imposed the death penalty. Thus, the only trial court report on file by which we can conduct our proportionality review under the statute is for the two aggravated murder convictions in Pierce County. Though aggravating factors were apparently present, the prosecutor in Spokane County allowed Yates to plead guilty to 13 counts of premeditated first degree murder, rather than first degree aggravated murder, therefore the Spokane County case is not included under the statute. It is well established that prosecutors exercise their discretion in determining whether to pursue the death penalty in any aggravated murder case and for plea bargaining or other reasons they may not seek capital punishment. The exercise of this discretion however has inhibited our ability to conduct a meaningful proportionality review. No cases exemplify this problem more than those of Ridgway and Yates.
¶167 We have continually grounded our proportionality review on the principles set forth in Furman v. Georgia , 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), construing it as an additional safeguard to ensure that the death penalty is not imposed arbitrarily or capriciously. In Harris , we stated that "[t]he impetus for proportionality review
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derives from the Supreme Court decision in Furman . . . ." 106 Wn.2d at 797 . Additionally, in Lord we declared that our concern in conducting proportionality review is "with alleviating the types of major systemic problems identified in Furman : random arbitrariness and imposition of the death sentence based on race." Lord , 117 Wn.2d at 910 . Thus, Furman presents the bedrock principles underlying our statutory review. To ensure that the sentence of death is not arbitrarily or capriciously imposed as required under Furman , we perform our proportionality review to determine whether "the death penalty has been imposed generally and not 'wantonly and freakishly imposed.' " Harris , 106 Wn.2d at 798 (quoting Moore , 233 Ga. at 864).
¶168 As the above discussion of our proportionality jurisprudence indicates, our appellate review as required by RCW 10.95.130 (2)(b) has not only evolved but has continued to limit the focus of comparison to other death penalty cases. This approach ignores the statutory mandate to include all cases in which the defendant was convicted of first degree aggravated murder as "similar cases" for comparison. When we factor in all the cases required by statute and review the outcome of our previous cases, no rational basis exists to explain or conclude that the sentence of death in any given case is imposed generally in similar cases. Not only have we not generally included all cases where the defendant has been convicted of first degree aggravated murder in our review, the majority of the death penalty cases we have declared to be "similar" for comparison in proportionality review are no longer death penalty cases. In previous cases our analysis has focused on "similar" cases where the death penalty was imposed, when those "similar" cases are no longer death penalty cases, our prior comparability analysis is undermined. This outcome renders it impossible to find that the death penalty is imposed generally in similar cases and leads to the conclusion that our historical approach to proportionality review is no longer viable.
¶169 With Ridgway, Mak, Ng, Yates, Rice, and others in our pool of similar cases, our proportionality review reveals
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the staggering flaw in the system of administration of the death penalty in Washington. As stated earlier, the dual objectives of our proportionality review are to proscribe random arbitrariness in the imposition of the death penalty and to ensure that the sentence of death is not imposed because of a defendant's race. We accomplish this object through conducting a proportionality review to guarantee that "no death sentence is affirmed unless in similar cases throughout the state the death penalty has been imposed generally and not 'wantonly and freakishly.' " Harris , 106 Wn.2d at 798 (quoting Moore , 233 Ga. at 864). Comparing Ridgway, Mak, Ng, and Rice with the imposition of the death penalty in Dayva Cross's case, and including all other cases required by that statute as similar cases, the penalty of death is not imposed generally in similar cases.
¶170 These cases exemplify the arbitrariness with which the penalty of death is exacted. They are symptoms of a system where statutory comparability defies rational explanation. The death penalty is like lightning, randomly striking some defendants and not others. Where the death penalty is not imposed on Gary Ridgway, Benjamin Ng, and Kwan Fai Mak, who represent the worst mass murders in Washington's history, on what basis do we determine on whom it is imposed? No rational explanation exists to explain why some individuals escape the penalty of death and others do not.
MADSEN, SANDERS, and OWENS, JJ., concur with C. JOHNSON, J.