In Re the Personal Restraint of Jeffries

Utter, J.

(dissenting) — I dissent because the instructions given to the jury did not require unanimity as to alternatives within each statutory aggravating circumstance. As a consequence, the defendant was denied his right to a unanimous verdict and this court is unable to engage in any rational review of the decision.

As Justice Pearson's dissent in Jeffries' direct appeal points out, "the statutory aggravating factors play a paramount role in the constitutionality of Washington's death penalty scheme.” State v. Jeffries, 105 Wn.2d 398, 441, 717 P.2d 722, cert. denied, 479 U.S. 922, 93 L. Ed. 2d 301, 107 S. Ct. 328 (1986). It is the finding of at least one aggravating circumstance which satisfies the constitutional imperative of narrowing the class of persons eligible for the death penalty. State v. Kincaid, 103 Wn.2d 304, 311, 692 P.2d 823 (1985), citing Zant v. Stephens, 462 U.S. 862, 877, 77 L. Ed. 2d 235, 103 S. Ct. 2733 (1983); State v. Bartholomew, 101 Wn.2d 631, 635-36, 683 P.2d 1079 (1984); State v. Campbell, 103 Wn.2d 1, 691 P.2d 929 (1984), cert. denied, 471 U.S. 1094, 85 L. Ed. 2d 526, 105 S. Ct. 2169 (1985). Under Washington law, criminal defendants may be convicted only when the jury reaches a unanimous verdict. State v. Mak, 105 Wn.2d 692, 735, 718 P.2d 407, cert. denied, 479 U.S. 995, 93 L. Ed. 2d 599, 107 S. Ct. 599 (1986). However, the majority here holds that unanimity is required only in a conclusory way, and would not require the jury to unanimously agree as to which specific facts support the alternative ways of committing an act which constitutes an aggravating circumstance. Since it is the finding of an aggravating circumstance which allows the imposition of a sentence of death, I find it the height of irony that unanimity is not required for this most critical of all decisions.

The majority relies on the Arndt rule that " if substantial evidence supports each of the alternate means of committing the single crime charged, and the alternate means are not repugnant to one another, jury unanimity as to the mode of commission is not required." (Italics mine.) State v. Whitney, 108 Wn.2d 506, 508, 739 P.2d 1150 (1987), citing State v. Arndt, 87 Wn.2d 374, 553 P.2d 1328 (1976). I would reiterate my prior opinion that following Arndt fails to satisfy the due process requirement of In re Winship, 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970). Win-ship requires proof beyond a reasonable doubt as to every fact necessary to constitute the crime. My conviction that the Arndt rule violates the Winship mandate makes its application in a noncapital case most troubling. However, in a death penalty case, such an analysis is particularly repugnant. The United States Supreme Court has repeatedly said that under the Eighth Amendment "'the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination.'" Caldwell v. Mississippi, 472 U.S. 320, 329, 86 L. Ed. 2d 231, 105 S. Ct. 2633 (1985), quoting California v. Ramos, 463 U.S. 992, 998-99, 77 L. Ed. 2d 1171, 103 S. Ct. 3446 (1983).

In any event, application of the Arndt test is misplaced under these facts. Arndt is applied only if substantial evidence supports each of the alternative means of committing the single crime charged. Arndt, at 376. This court has repeatedly recognized that in order to submit alternative means to the jury, there must be sufficient evidence to support each of the methods charged. State v. Franco, 96 Wn.2d 816, 823, 639 P.2d 1320 (1982); State v. Green, 94 Wn.2d 216, 232, 616 P.2d 628 (1980). This court has recently reiterated the qualifying language in the Arndt rule when it stated:

Because constitutionally sufficient evidence supports both charged alternatives, the lack of jury unanimity does not entail the danger present in Green II that any of the jury members may have based their finding of guilt on an invalid ground. ... We agree that an instruction on jury unanimity as to the alternative method found is preferable because it eliminates potential problems which may arise when one of the alternatives is not supported by substantial evidence . . .

(Italics mine.) Whitney, at 511. I would hold that this is just such a case, and that the "potential problems" envisioned by the Whitney court must be addressed here.

In State v. Green, supra, this court found that lack of an instruction on unanimity as to two alternative ways to commit aggravated murder required reversal. The Green court found that since (1) the jury was not required to be unanimous as to which alternative means it had relied upon, and (2) that one of the alternatives was unsupported by substantial evidence, the court must reverse. The court found it was not possible to know whether the jury (or some of the jurors) had rested its determination of the existence of an aggravating factor on the alternative for which no substantial evidence existed. Arndt was inapplicable in Green, as it is in the present case, because one of the alternative means is unsupported by substantial evidence.

In the present case, one of the aggravating circumstances submitted to the jury was: "There was more than one victim and the murders were part of a common scheme or plan or the result of a single act of the defendant; ..." Court's instruction 8; RCW 10.95.020(8). The majority in Jeffries' direct appeal ignores the alternatives in instruction 8 and simply and erroneously states that the jury found a "common scheme." Jeffries, at 429. The jury in fact found the murders were part of a common plan or scheme or the result of a single act. The dissent in Jeffries points out:

Preliminarily, the State has not argued that the murders were a result of "a single act". Such an argument would fail because no evidence was presented which shows the Skiffs were killed together, in one act, by Jeffries. In fact, the State's theory, adopted by the majority, is that Phil Skiff was killed first and that Inez Skiff was murdered later that day. That theory precludes a conviction based on a "single act".

Jeffries, at 448. Therefore, since one of the alternative means in the instructions submitted to the jury was unsupported by evidence, this case cannot be analyzed under the Arndt rule, but instead is placed squarely within the reasoning in Green.

Not only is this death penalty infirm under state law because of the misapplication of the Arndt rule, but it is also subject to challenge under federal case law. The majority concludes:

The Winship requirement, however, is already satisfied by our rule that "sufficient evidence" be presented of each means, as that phrase is interpreted in Green in light of Jackson v. Virginia, 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979). Thus, unanimity on each set of elements is not mandated by Winship.

Majority opinion, at 338. The problem with this rationale is that it is based on the false assumption that there was substantial evidence to support a finding that the murders were committed in a "single act."

Additionally, as the Green court concluded, submitting a method or means to the jury for which there is no substantial evidence and not requiring a unanimous verdict on means runs afoul of the Jackson decision. Jackson held that on review the proper test is whether there was sufficient evidence to justify a rational trier of fact to find guilt beyond a reasonable doubt.

"After Winship . . . the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt."

Green, at 220-21. The Franco court (discussing Green) explained that because one of the means to commit aggravated murder was unsupported by substantial evidence "that issue should not have been submitted to the jury." (Italics mine.) State v. Whitney, 108 Wn.2d 506, 509, 739 P.2d 1150 (1987), quoting State v. Franco, supra.

Because no substantial evidence supports one of the alternatives found in instruction 8 and because we have no unanimous jury finding on which means the jury believed, it is impossible for this court to know whether the jury based its verdict of aggravated murder on invalid grounds. Every fact necessary to constitute the crime charged must be proven beyond a reasonable doubt. In re Winship, 397 U.S. 358, 363, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970). The presence of an aggravating circumstance is a prerequisite to imposition of the death penalty. Surely such a critical determination must be susceptible to appellate scrutiny and a verdict form which fails to direct the jury to reach unanimity on this crucial fact surely runs afoul of the Win-ship requirement. For proper review of a death sentence, it is necessary for this court to know how many aggravating circumstances the jury determined were present. As we pointed out in State v. Campbell, supra, the number of aggravating circumstances is relevant in making the determination required by RCW 10.95.130(2)(b) as to proportionality of the death sentence.

In United States v. Gipson, 553 F.2d 453, 457-58 (5th Cir. 1977), the court recognized that "[t]he unanimity rule . . . requires jurors to be in substantial agreement as to just what a defendant did as a step preliminary to determining whether the defendant is guilty of the crime charged." I agree with the recent Third Circuit case which reasoned:

When the government chooses to prosecute under an indictment advancing multiple theories, it must prove beyond a reasonable doubt at least one of the theories to the satisfaction of the entire jury. It cannot rely on a composite theory of guilt, producing twelve jurors who unanimously thought the defendant was guilty but who were not unanimous in their assessment of which act supported the verdict. Conviction by a jury that was not unanimous as to the defendant's specific illegal action is no more justifiable than is a conviction by a jury that is not unanimous on the specific count.

United States v. Beros, 833 F.2d 455, 462 (3d Cir. 1987).

In Gardner v. Florida, 430 U.S. 349, 358, 51 L. Ed. 2d 393, 97 S. Ct. 1197 (1977), the United States Supreme Court noted: "It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion." It is difficult to see how the defendant or the community can perceive a death decision to be based on reason if a jury is not required to agree and to state the elements it believes support a finding of aggravating circumstances.

RCW 10.95.100 requires this court to review all sentences imposing death. We must answer the question whether there was sufficient evidence to justify the jury's 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?"' (Italics mine.) State v. Jeffries, supra. The crime for which the defendant was sentenced to death was aggravated first degree murder which necessarily includes the finding of an aggravating circumstance. RCW 10.95.020. However, the fact that the jury was not required to unanimously agree on the different alternatives within the proposed aggravating circumstances makes meaningful review impossible. We are unable to carry out our statutory mandate to review this sentence of death because we cannot know what aggravating circumstance the jury had in mind when it endeavored to determine if leniency was appropriate. The United States Supreme Court has stated: "It [a state] 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 omitted.) Godfrey v. Georgia, 446 U.S. 420, 428, 64 L. Ed. 2d 398, 100 S. Ct. 1759 (1980). Since there is no unanimous agreement by the jury to tell this court which alternatives within the aggravating circumstance they believed were present, this court can only search the record and guess at what they might have found. This is hardly the rational review envisioned by the United States Supreme Court or mandated by our own statute.

Pearson, C.J., and Dolliver, J., concur with Utter, J.