State v. Bartholomew ( 1982 )

Dolliver, J.

(concurring in part, dissenting in part)—I concur with the opinion of the majority except for section VI relative to the disposition of the case. On the issue of whether RCW 10.95.090 or RCW 10.95.050(4) is the controlling statute the majority chooses RCW 10.95.090. The reason given is: "This conclusion is compelled by the rule of lenity, which requires that in a criminal case any ambiguity in a statute be resolved in favor of the defendant." Majority, at 215.

Other rules of statutory construction are neglected by the majority: the Legislature is presumed not to engage in unnecessary or meaningless acts, State v. Wanrow, 88 Wn.2d 221, 559 P.2d 548 (1977); statutes should whenever possible be interpreted so. no portion is superfluous, void, or insignificant, Hayes v. Yount, 87 Wn.2d 280, 552 P.2d 1038 (1976); and "all of the provisions of the act must be considered in their relation to each other and, if possible, harmonized to insure proper construction of each provision." Burlington N., Inc. v. Johnston, 89 Wn.2d 321, 326, 572 P.2d 1085 (1977).

It seems to me the "ambiguity" discovered by the majority does not exist and that the two sections of the statute are easily harmonized. When the orderly and logical sequence of the legislative scheme is spelled out, I believe it will become apparent RCW 10.95.050(4) is the applicable statute.

Once a defendant is adjudicated guilty of aggravated first degree murder, if notice of a special sentencing proceeding has been filed and served as provided by RCW 10.95.040, a special sentencing proceeding shall be held. RCW 10.95-.050(1). A jury shall decide the matters presented in the special sentencing proceeding unless waived by the trial court with the consent of the defendant and the prosecuting attorney. RCW 10.95.050(2). If the defendant's guilt was determined by a jury, RCW 10.95.050(3) requires the same jury to hear the special sentencing proceeding unless unforeseen circumstances make it impracticable to reconvene the same jury, in which event the trial court may convene a jury pursuant to RCW 10.95.050(4).

RCW 10.95.050(4) provides:

A. If the defendant's guilt was determined by

(1) a plea of guilty or

(2) a decision of a trial court sitting without a jury, or

B. If a retrial of the special sentencing proceeding is necessary

(1) for any reason including but not limited to a mistrial in a previous special sentencing proceeding or

(2) as a consequence of a remand from an appellate court, then

C. The trial court shall impanel a jury of 12 persons plus whatever alternate jurors the trial court deems necessary.

RCW 10.95.060 and RCW 10.95.070 cover the procedures at the special sentencing proceeding while RCW 10.95.080 states the sentence which shall be imposed on the defendant following the action of the jury at the special sentencing proceeding.

RCW 10.95.090 provides if any sentence of death imposed by RCW 10.95 is

A. Commuted by the Governor, or

B. Held invalid by a final judgment of a court after all avenues of appeal have been exhausted by the parties to the action, or

C. If the death penalty established by RCW 10.95 is held to be invalid by a final judgment of a court which is binding on all courts of the state, then

D. The defendant shall be sentenced to life imprisonment without parole as provided by RCW 10.95.030(1).

Given the posture of this case in the continuum of events, the language of RCW 10.95.050 and RCW 10.95.090, and the disposition of the case by the majority, I believe RCW 10.95.050(4) should apply. RCW 10.95.090 contemplates a situation of finality: commutation by the Governor of the death penalty; invalidation of the death penalty; invalidation of the death sentence "by a final judgment of a court after all avenues of appeal have been exhausted by the parties". (Italics mine.) In this case there has been no gubernatorial action, the statutory death penalty has not been held invalid (see majority, at 198), nor has there been an exhaustion of "all avenues of appeal" as contemplated by the statute. Presumably, the State could, if it chose, petition the United States Supreme Court to consider whether the application by this court of the United States Constitution to the special sentencing proceeding is proper. Certainly, if this court had held against the defendant, he could have petitioned the Supreme Court for review. RCW 10.95.090 envisions a finality relative to both the death penalty and the defendant which is not present here.

RCW 10.95.050(4) fits exactly the circumstances of this case. It contemplates a situation where there is a remand from an appellate court when there has been no final determination the death penalty or the death sentence are invalid. Rather, in an intermediate stage in the proceedings a state appellate court has held the statute does not meet the requirements of the United States Constitution and is remanding to the trial court.

Read in sequence, RCW 10.95 is not ambiguous but part of a harmonious whole. I see no warrant for the application of the rule of lenity. The court has chosen not to invalidate the entire legislative scheme for the special sentencing proceeding but rather to perform judicial surgery in order to make it valid.

I believe there should now be a retrial of defendant under the special sentencing proceeding as provided for by RCW 10.95.050(4) consistent with the principles established by the majority opinion.

Brachtenbach, C.J., and Stafford, Dore, and Dimmick, JJ., concur with Dolliver, J.

Reconsideration denied February 10, 1983.