State v. Campbell

Utter, J.

(concurring in part, dissenting in part) — I concur in that part of the opinion which affirms the conviction for aggravated murder. I dissent to that portion of the opinion that upholds the imposition of the death penalty. Charles Campbell will die in prison, as he should. The only question before us is whether it will be of natural causes or at the hand of the State.

The Washington capital punishment scheme is applied arbitrarily, without pattern or meaningful standards, and therefore violates the equal protection clause of the fourteenth amendment to the United States Constitution. It is also void for vagueness and violates article 1, section 14 of our state constitution by conferring upon the prosecutor standardless discretion to require a special sentencing proceeding. The statute violates these constitutional provisions by allowing the prosecuting attorney to choose who the jury may decide to sentence to death if convicted of aggravated first degree murder, while removing from that consideration criminals convicted of murder similar in circumstance and character. Although language was used in State v. Dictado, 102 Wn.2d 277, 297-98, 687 P.2d 172 (1984), stating that the prosecutorial discretion in RCW 10.95 does not violate equal protection, it was of limited application as it only applied to the mandatory life sentence and not to the additional problems raised by the death penalty aspect of the sentencing scheme.

This court is required by statute to review three matters in all cases where the death penalty has been imposed. RCW 10.95.130 requires this court in each case to decide whether there was sufficient evidence to justify the affirmative finding to the question posed by RCW 10.95.060(4). That question is: '"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?"' The second is whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases. The third is whether the sentence of death was brought about through passion and prejudice.

To conscientiously comply with the requirements of the statute, judges on this court must first determine whether there are sufficient mitigating circumstances. Here, unfortunately, there is no satisfactory definition of what a mitigating circumstance is. In Lobsenz, Unbridled Prosecu-torial Discretion and Standardless Death Penalty Policies: The Unconstitutionality of the Washington Capital Punishment Statutory Scheme, 7 U. Puget Sound L. Rev. 299, 343 (1984), the author observes:

The statute provides no definition of the term "mitigating circumstance." The closest the statute comes to a discussion of mitigating circumstances is contained in RCW 10.95.070. This section does not speak of mitigating circumstances as such, but instead permits jury consideration of "any relevant factors." The factors listed do not all militate in favor of leniency. The last relevant factor concerns the question of "whether there is a likelihood that the defendant will pose a danger to others in the future." Presumably an affirmative answer to this question militates against leniency. Although some of the factors listed in RCW 10.95.070 could be taken as mitigating circumstances, neither the prosecuting attorney nor the jury is told why these factors qualify as mitigating factors. Since the list is expressly stated to be only illustrative, the statute conveys that there are other relevant factors, yet no legislative directive tells how to determine if these other relevant factors qualify as "mitigating circumstances."

If the underlying truth is that anything may be a mitigating circumstance, then RCW 10.95 is completely standardless, and the statute fails to '"guide' and 'regularize' the discretion of the sentencing jury and [to] make the process of sentencing to death 'rationally reviewable.'"

(Footnote omitted.)

In Godfrey v. Georgia, 446 U.S. 420, 428, 64 L. Ed. 2d 398, 100 S. Ct. 1759 (1980), the United States Supreme Court has emphasized that a state has

a constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty. Part of a State's responsibility in this regard is to define the crimes for which death may be the sentence in a way that obviates "stan-dardless [sentencing] discretion." It must channel the sentencer's discretion by "clear and objective standards" that provide "specific and detailed guidance," and that "make rationally reviewable the process for imposing a sentence of death."

(Footnotes and citations omitted.) The specific and detailed guidance mandated by Godfrey is lacking in this statute's sentencing phase and this court has no standards by which to determine what a mitigating circumstance is. Even if the specific and detailed guidance mandated by Godfrey does not apply to the sentencing phase, see Zant v. Stephens, 462 U.S. 862, 77 L. Ed. 2d 235, 103 S. Ct. 2733 (1983) (Marshall, J., dissenting), our state constitution "requires stringent procedural safeguards so that a fundamentally fair proceeding is provided. Where the trial which results in imposition of the death penalty lacks fundamental fairness, the punishment violates article 1, section 14 of the state constitution." State v. Bartholomew, 101 Wn.2d 631, 640, 683 P.2d 1079 (1984).⁷

Even if the court could determine what constitutes a mitigating circumstance, no guidance is provided by the statute as to whether some mitigating circumstances are more meritorious than others. If all mitigating circumstances are equally meritorious, is one enough to merit leniency or are more required? There is no definition for the word "sufficient", which leaves the prosecutor and juror free to follow their own personal feelings. For one juror or prosecutor youth may be a sufficient factor; for another, a mental illness; for another, no prior record; for another, a low mental capacity. Our statute requires just one aggravating factor to be sufficient to impose capital punishment. Is one mitigating factor likewise sufficient? The statute fails to say so and by so failing leaves this court and jurors without articulable standards which we may apply.

Second, this court must determine whether the sentence of death is excessive or disproportionate to the sentence imposed in similar cases. Since Washington's death penalty was reinstituted after Furman v. Georgia, 408 U.S. 238, 33 L. Ed. 2d 346, 92 S. Ct. 2726 (1972), numerous occasions have arisen in which the prosecuting attorney had the opportunity to request a special sentencing proceeding. A review of our records from January 1981 to November 1984 reveals 140 cases other than automobile homicides, where human life was violently taken. In 61 of those cases, there appeared to be no aggravating factors. Although some of these cases arose after our Frampton decision invalidating the 1977 death penalty act, State v. Frampton, 95 Wn.2d 469, 627 P.2d 922 (1981), of approximately 46 charges filed under the 1977 act, only 12 sought the death penalty and only 2 others sought life without parole.

The pattern of filings and of jury verdicts under our new statute defies any rational explanation. Out of 33 aggravated murders charged since the last statute was passed, the death penalty was sought in only 11 cases. We can find no basis on the face of these cases to explain why many of the cases where the death penalty was not sought differ in substantial degree from many where the death penalty was sought. In State v. Carey, Whatcom County cause 82-1-00291-0 (Feb. 10, 1983), a 28-year-old Caucasian was charged and convicted of the arson murder of his wife and 18-month-old son. The death penalty was not sought. In State v. Ramil, King County cause 81-1-01924-9 (Nov. 18, 1981); State v. Guloy, King County cause 81-1-01924-9 (Nov. 18, 1981); and State v. Dictado, 102 Wn.2d 277, 687 P.2d 172 (1984), the defendants were involved in the execution slaying of two union reformers who were elevated to office to achieve change in corrupt union practices. The death penalty was not sought. In State v. Kincaid, Yakima County cause 82-1-00396-0 (Dec. 27, 1982) and State v. Brown, King County cause 82-1-03429-7 (Apr. 13, 1983), two innocent victims were killed by each defendant and yet the death penalty was not sought. In State v. Manthie, Kitsap County cause 82-1-00003-3 (June 21, 1982) and State v. Edmondson, Kitsap County cause 82-1-00244-3 (Mar. 16, 1983), both cases arising from the same crime, one defendant was hired by the other to commit murder and the death penalty was not sought.

Most recently, David Frederick Simmons and Henry William Dailey, Jr., were convicted of aggravated murder for killing a Lynnwood couple and then hiding their bodies in Lake Sammamish. The death penalty was not sought. On October 23, 1984, Pierce County Superior Court Judge Thomas A. Swayze, Jr., sentenced Louis Otis Maryland to life without parole after he pleaded guilty in the death of an 85-year-old woman whose body was found in her burned-out home. In a typewritten confession, Maryland stated that he intended to rob the woman who he knew had money because of a previous business transaction with her. Maryland said that he tied up his victim and tried, "to put [her] to sleep" by injecting her with insulin he found in her kitchen. After that attempt failed, he next tried "anything that was liquid in the kitchen," including alcohol and chlorine. He then said he tried unsuccessfully to strangle her and suffocate her. Finally, he doused her room and part of the living room with turpentine and set the house on fire. The prosecutor told the judge that the prosecutors agreed not to seek the death penalty if Maryland pleaded guilty. In all the remaining cases where no death penalty was sought, the defendants killed innocent victims in the course of either a rape or other felony, and yet faced no possibility of execution.

In the 11 cases out of the 35 aggravated murders where the death penalty was sought, a jury did not authorize imposition of the death penalty in 6. In one of these, one person was killed, in two, two were killed and in another one the codefendant in the Wah Mee Club killing of 13 people faces the death penalty while his two accomplices do not. State v. Ng, King County cause 83-1-00504-0 (Oct. 25, 1983). The King County prosecutor recently announced that no aggravated charges will be filed against Tony Ng, a recently discovered suspect in the Wah Mee killings.

Finally, the court is required to determine whether the sentence of death was brought about through passion and prejudice. The structure of this statute makes that determination difficult, if not impossible. Where a prosecutor has "reason to believe" that there are not sufficient mitigating circumstances as determined solely within his discretion, he is directed to request a death sentence. Even though there may be a number of identifiable mitigating circumstances, if the prosecutor believes there is one reason to believe the mitigating circumstances are not sufficient, this is all that is required to put the question of capital punishment before the jury. The statute requires no reason to be stated for the record, nor any justification for requesting capital punishment. No affidavit filed with the court is required and we are absolutely unable to determine what the underlying reason is for allowing the jury to consider imposition of the death penalty that distinguishes it from other aggravated murders.

In a case as factually repugnant as this, it may be difficult to conceive of any reason to quarrel with the prosecutor's choice. Indeed, the facts were so repugnant that the prosecuting attorney officially acknowledged the receipt of a petition containing over 1,000 signatures calling on the prosecutor to seek the death penalty. The prosecutor placed the petition in his official file and sought the death penalty. Public outcry may, however, be a double-edged sword which makes impossible the determination of whether or not passion or prejudice plays a role in bringing about the sentence of death. In King County, labor reform leaders were allegedly gunned down by hired assassins. Members of the defendants' ethnic community asked that the prosecutor not seek the death penalty against code-fendants in that case. The death penalty, in turn, was not sought. The nature of the deaths, the argument that the killings were for hire, and the brutal murders of idealistic labor reformers make that case difficult to distinguish from other homicides of the most aggravated nature.

Because there is no requirement for the prosecutor to state the reason for his belief that there are not sufficient mitigating factors, the statute is open to a politicized determination of whether or not the jury should be required to determine whether or not the death penalty should be imposed. I believe this is a fatal flaw.

The United States Supreme Court in Wolff v. McDonnell, 418 U.S. 539, 565, 41 L. Ed. 2d 935, 956, 94 S. Ct. 2963 (1974) highlighted the fundamental requirement that procedural due process guarantees citizens the right to an explanation when governmental officials take action that adversely affects them: "[T]he provision for a written record helps to insure that administrators, faced with possible scrutiny by state officials and the public, and perhaps even the courts, where fundamental constitutional rights may have been abridged, will act fairly." Lacking such a requirement, I believe this statute leaves the court with a constitutionally defective inability to fulfill its duty of review.

In People ex rel. Rice v. Cunningham, 61 Ill. 2d 353, 336 N.E.2d 1 (1975), the Illinois Supreme Court examined that state's death penalty. That statute directed a panel of three judges to decide whether "there are compelling reasons for mercy" such that the death sentence should not be imposed. That court concluded, "the provision is defective because it does not contain standards or guidelines to be considered in determining whether there are 'compelling reasons for mercy' and the imposing of a sentence other than a sentence of death." Cunningham, at 361. I cannot distinguish the problem presented to the Cunningham court from that presented to this court.

If the policy of this state is retribution for capital crimes, then it must be evenhanded. Evidence nationally of discriminatory and irrational application of the death penalty is substantial. See, e.g., Bowers & Pierce, Arbitrariness and Discrimination Under Post-Furman Capital Statutes, 26 Crime & Delinq. 563 (1980); Foley & Powell, The Discretion of Prosecutors, Judges, and Juries in Capital Cases, 7 Crim. Just. J. 16 (Fall 1982); Jacoby & Paternoster, Sentencing Disparity and Jury Packing: Further Challenges to the Death Penalty, 73 J. Crim. L. & Criminology 379 (1982); Kleck, Racial Discrimination in Criminal Sentencing: A Critical Evaluation of the Evidence With Additional Evidence on the Death Penalty, 46 Am. Soc. Rev. 783 (1981); Radelet, Racial Characteristics and the Imposition of the Death Penalty, 46 Am. Soc. Rev. 918 (1981); Zeisel, Race Bias in the Administration of the Death Penalty: The Florida Experience, 95 Harv. L. Rev. 456 (1981).

The potential for discriminatory imposition of the death penalty has been recognized by lower federal courts. See, e.g., Harris v. Pulley, 692 F.2d 1189, 1197 (9th Cir. 1982), rev'd and remanded, _U.S. _, 79 L. Ed. 2d 29, 104 S. Ct. 871 (1984) (holding that "the district court should, if it becomes necessary, provide an opportunity to develop the factual basis and arguments concerning the race-discrimination and gender-discrimination claims"). Following the remand from the Supreme Court, the Ninth Circuit has returned the case to the district court for consideration of those claims and others not addressed by the Supreme Court. Harris v. Pulley, 726 F.2d 569 (9th Cir. 1984). Imposition of the death penalty may even vary widely in similar circumstances between regions within a state. Bowers & Pierce, Arbitrariness and Discrimination Under Post-Furman Capital Statutes, 26 Crime & Delinq. 563, 601-07 (1980). See appendix.

A constitutional death penalty statute should not allow the imposition of the death penalty in a standardless manner. This State's penalty is fatally flawed for this reason and I must therefore dissent.

Appendix Probability of Receiving the Death Sentence in Florida and Georgia for Felony and Nonfelony Homicide, by Judicial Circuits/Counties Grouped Regionally (from effective dates of respective post-Furman capital statutes through 1977).

Dolliver, J., concurs with Utter, J.

7 Bartholomew did not address the prosecutorial discretion issue raised here.