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STATE v. BROWN
940 P.2d 546 (1997)
Supreme Court of Washington, En Banc.
July 24, 1997.
On the morning of May 23, 1991, Ms. Holly C. Washa was at the Wyndham Garden Hotel near the Seattle-Tacoma Airport where she had just quit her part-time job. As she was driving out of the parking lot in her 1985 Oldsmobile, Appellant pointed to one of the tires on her automobile suggesting something was wrong. She stopped. Appellant then forced his way into her automobile, stuck a knife3 in her face, and grabbed her by the hair. He demanded that she "drive or die," and began rummaging through her purse for money. Finding only a small amount of change, he looked at her checkbook. He then forced her to write a check for $350.00, the entire balance in her checking account. They went through the drive-up window at a Seafirst Bank in Federal Way and cashed the check. Then they went to the Seattle waterfront area where Appellant tied Ms. Washa's hands behind her back with her purse strap and forced her into the passenger seat of her automobile. He asked her several questions concerning her schedule on a typical day, who her roommates were and what they did.4 He then purchased some handcuffs at a gun shop while leaving Ms. Washa tied up in the automobile.5After purchasing the handcuffs, Appellant took Ms. Washa back to his room at the Shadow Motel where he paid for an extra night. He demanded that she remove all her clothing, after which he tied her to the bed with his neckties and her purse strap. He cut up her shirt and stuffed it into her mouth for a gag. He then ordered her to get dressed again and took her to get something to eat. While at a Burger King drive-through, he held the knife in a threatening position where she could see he might use it. Upon their return to the motel room, he ordered her to remove her clothing and lie face down on the bed. He also told her not to scream or do anything. Appellant said Ms. Washa began fellating him, which he took as her consent for sexual activity.6 Appellant then engaged in sexual intercourse with Ms. Washa for about two hours, during which time he noticed she was looking at the door and possibly thinking of escape. Appellant decided it was time "to have a little control, ... make her a little more scared of me, basically." He then tied her in a face up, spread eagle position, with her hands behind her back and her mouth gagged, and whipped her "maybe half a dozen times...."7 Appellant allowed Ms. Washa to get dressed again, tied her hands behind her back, and drove her to Federal Way for pizza. When they returned to the motel, Appellant again forced her to undress and tied her to the bed in a face down, spread eagle position with her hands tied behind her back. He then had sexual intercourse with her again. At about 11:00 p.m. that evening, he telephoned Ms. Susan J. Schnell in California to reconfirm their weekend plans in Palm Springs. After that, he crawled into bed with Ms. Washa, who was still bound and gagged, and they "dozed."8 The next day, Friday, May 24, 1991, Appellant forced Ms. Washa to drive him to her apartment where he hoped to find checks belonging to her roommates that he could forge. He found some checks and attempted to cash them in $500.00 amounts, but was thwarted when the banks wanted to compare signatures with signature cards on file. Appellant became irritated with Ms. Washa when the check-cashing plan did not go as he had hoped. She began to drive somewhat erratically, making him even angrier.9 When they returned to the motel, Appellant again tied Ms. Washa to the bed face down in a spread eagle position with her hands handcuffed behind her back and her mouth gagged with a washcloth. He penetrated
her vaginally and anally with an aftershave lotion bottle.10 He shaved her pubic hair and held a hot hair dryer close to her vagina, breasts and stomach. He also shocked her by using an electric extension cord with the end cut off. He described these acts as "torture" and acknowledged that the electric shock was particularly painful.11 At 8:45 on the evening of May 24, 1991, Appellant left for the Seattle-Tacoma Airport to embark on his trip to California. He forced Ms. Washa into the trunk of her blue 1985 Oldsmobile automobile with her hands handcuffed behind her back and drove to the Doug Fox Travel Agency parking lot where he momentarily parked the automobile. Because shuttle buses were driving around the lot, Appellant was concerned that someone might discover Ms. Washa since "she could just bang and clang and crunch and scream and be out very quickly."12 He then went to the trunk and cut her throat with "three swipes" and stabbed her several times in the chest and abdominal areas.13 Because Ms. Washa's blood began leaking from the trunk of the automobile, Appellant moved from the Doug Fox lot to the Budget Park and Ride lot near Shumsky's Restaurant in the airport area. He told detectives:
1. A critical issue in this appeal is admissibility of the audio tapes admitted as State's Exhibit 89. 2. See Black's Law Dictionary: Confession ("A voluntary statement made by a person charged with the commission of a crime ..., communicated to another person ... [acknowledging oneself] to be guilty of the offense charged, and [disclosing] the circumstances of the act or the share and participation [the person charged] had in it.") Admission ("[T]he avowal of a fact or of circumstances from which guilt may be inferred, but only tending to prove the offense charged, and not amounting to a confession of guilt.") 3. The "knife" referred to throughout this narrative was actually an all-purpose tool, with the brand name "Leatherman," which contained multiple folding implements, including a knife blade. 4. Ex. 89, tape 1, side 2. 5. Ex. 89, tape 2, side 1. 6. Ex. 89, tape 1, side 2. 7. Ex. 89, tape 2, side 1. 8. Ex. 89, tape 2, side 1. 9. Ex. 89, tape 2, side 1. 10. Ex. 89, tape 2, side 2. 11. Ex. 89, tape 1, side 2. 12. Ex. 89, tape 2, side 1. 13. Ex. 89, tape 3, side 1. 14. Ex. 89, tape 1, side 2. 15. Ex. 89, tape 1, side 2. 16. She was taken to the hospital for emergency surgery. She survived and testified as a witness in the King County trial. 17. The State also presented corroborating witness testimony and physical evidence. See Br. of Resp't at 24-27. 18. RCW 10.95.130(2)(a), (b), (c), and (d). 19. RCW 10.95.130(1). 20. Clerk's Papers at 1594 (Verdict Form). 21. State v. Pirtle,127 Wn.2d 628, 682, 904 P.2d 245 (1995), cert. denied, ___ U.S. ___, 116 S.Ct. 2568, 135 L.Ed.2d 1084 (1996). 22. Report of Proceedings, December 16, 1993 at 31-32. 23. Report of Proceedings, December 17, 1993 at 24. Appellant was born April 16, 1953. 24. Report of Proceedings, December 16, 1993 at 31, 33. 25. Id. at 32-36. 26. Id. at 127-29. 27. Report of Proceedings, December 17, 1993 at 25-27. 28. Id. at 30. 29. Id. 30. Id. at 67. 31. Report of Proceedings, December 20, 1993 at 43-44; Report of Proceedings, December 17, 1993 at 70. 32. Report of Proceedings, December 21, 1993 at 110-13. 33. Id. at 102-10. 34. See State v. Lord,117 Wn.2d 829, 906, 822 P.2d 177 (1991) (upholding under RCW 10.95.130(2)(a) a jury's finding that antisocial personality disorder did not mitigate in favor of leniency for a capital appellant, noting that the disorder explained, but did not excuse, appellant's behavior) cert. denied, 506 U.S. 856, 113 S.Ct. 164, 121 L.Ed.2d 112 (1992); see also State v. Dodd,120 Wn.2d 1, 25, 838 P.2d 86 (1992) (diagnosis of severe pedophilia did not merit leniency under RCW 10.95.130(2)(a)). 37. Br. of Appellant at 174. 38. Harris ex rel. Ramseyer v. Blodgett,853 F.Supp. 1239, 1288 (W.D.Wash.1994), aff'd, Harris ex rel. Ramseyer v. Wood,64 F.3d 1432 (9th Cir.1995). 39. State v. Brett,126 Wn.2d 136, 207-09, 212, 892 P.2d 29 (1995), cert. denied, ___ U.S. ___, 116 S.Ct. 931, 133 L.Ed.2d 858 (1996). 40. Pirtle, 127 Wash.2d at 683, 904 P.2d 245 (citing Brett). 42. Lord, 117 Wash.2d at 910, 822 P.2d 177 (citing Pulley v. Harris,465 U.S. 37, 54, 104 S.Ct. 871, 881, 79 L.Ed.2d 29 (1984)). 43. Both the appellant and the victim in this case are Caucasian. 45. Id. 47. State v. Harris,106 Wn.2d 784, 798, 725 P.2d 975 (1986), cert. denied sub nom. Harris v. Washington, 480 U.S. 940, 107 S.Ct. 1592, 94 L.Ed.2d 781 (1987). 48. Compare Lord, 117 Wash.2d at 911, 822 P.2d 177 (suggesting a "family resemblances" approach) with State v. Benn,120 Wn.2d 631, 680-693, 845 P.2d 289 (suggesting a statistically based approach). 49. RCW 10.95.130(b). 52. Id. 56. See, e.g., Report of the Trial Judge, State v. Rupe (single gunshot wound to head of the victims; no torture); Report of the Trial Judge, State v. Jeffries (multiple gunshot wounds; no torture); Report of the Trial Judge, State v. Benn (gunshot wound to the head of the victims; no torture); Report of the Trial Judge, State v. Harris (gunshot wound to the head and neck of the victim; contract killing; no torture). 58. Clerk's Papers at 1451-52 (Special Verdict Form B). 59. RCW 10.95.030(2). 60. See, e.g., Report of the Trial Judge, State v. Gentry (one aggravating factor: concealment of identity); Report of the Trial Judge, State v. Benn (one aggravating factor: multiple victims); Report of the Trial Judge, State v. Harris (one aggravating factor: contract murder); Report of the Trial Judge, State v. Jeffries (two aggravating factors: multiple victims, concealment of a crime). 61. Report of the Trial Judge, State v. Brown; Report of Proceedings, December 15, 1993 at 45-46. 62. See Report of the Trial Judge, State v. Rupe (no prior criminal convictions); Report of the Trial Judge, State v. Harris (two prior convictions: assault, manslaughter); Report of the Trial Judge, State v. Benn (many misdemeanors and three prior convictions: first degree theft, grand larceny, first degree theft). 64. For a more detailed and thorough description of Appellant's mitigation evidence, see the discussion on "Sufficiency of the Evidence," supra. 66. See, e.g., Dodd, 120 Wash.2d at 11, 838 P.2d 86 (severe homosexual pedophilia); Lord, 117 Wash.2d at 906, 822 P.2d 177 (antisocial personality disorder); State v. Rice,110 Wn.2d 577, 592-96, 757 P.2d 889 (1988) (evidence presented of "deep personality disorder and disordered childhood," but "no evidence of any organic central nervous system disease or intracranial abnormalities."). 67. Br. of Appellant at 179. 68. Id. 69. RCW 10.95.030(2)(a), (c). 70. Report of Proceedings, December 20, 1993 at 114. 77. Id. 78. See Russell, 125 Wash.2d at 89, 882 P.2d 747 (incorporation of improper statements made by prosecuting attorney into defense argument weakened defendant's contention the statements denied him a fair trial). 81. Id. 83. Id. 85. Report of Proceedings, December 6, 1993 at 104-105. 86. See Clerk's Papers at 1420. 88. Id. 90. Id. 100. Report of Proceedings, December 6, 1993 at 135. 101. Id. at 141. 102. Id. at 141-42. 103. Id. at 154-55. 104. Report of Proceedings, December 15, 1993 at 45-46. 105. State v. Laureano,101 Wn.2d 745, 764, 682 P.2d 889 (1984), overruled on other grounds, by State v. Brown,111 Wn.2d 124, 761 P.2d 588 (1988), adhered to on rehearing,113 Wn.2d 520, 782 P.2d 1013 (1989) (citing Tegland); 5 Karl B. Tegland, Wash. Prac. Evidence § 114, at 386 (3d ed. 1989). 106. See Lane, 125 Wash.2d at 831, 889 P.2d 929; see also John W. Strong, McCormick on Evidence, § 190, at 799 (4th ed.1992) (res gestae evidence admissible "[t]o complete the story of the crime on trial by placing it in the context of nearby and nearly contemporaneous happenings.") (footnote omitted). 107. See Lane, 125 Wash.2d at 833, 889 P.2d 929 (evidence of events occurring within a 2- or 3-day period of the charged crime admissible under res gestae exception to ER 404(b)). 108. Brett, 126 Wash.2d at 181, 892 P.2d 29; State v. Laviollette,118 Wn.2d 670, 676, 826 P.2d 684 (1992) (citing Grady v. Corbin,495 U.S. 508, 521, 110 S.Ct. 2084, 2093, 109 L.Ed.2d 548 (1990)). 109. Along with his double jeopardy claim, Appellant also argues his due process rights were violated when the trial court refused to "tell the jury [in the penalty phase] it could not consider the Susan Schnell facts as well as the uncharged sexual offense in deciding whether to impose death or life without parole." Br. of Appellant at 129. 110. Clerk's Papers at 1089-90. 111. Report of Proceedings, November 16, 1993 at 10. 112. Id. at 10-11. 113. Report of Proceedings, November 30, 1993 at 77. 114. Clerk's Papers at 1419. See Jury Instruction Number 7. 116. Appellant's reliance on State v. Halstien,122 Wn.2d 109, 857 P.2d 270 (1993) for the proposition that Rule 404(b) applies to this testimony is misplaced. In Halstien, the defendant was convicted of burglary with a finding of sexual motivation, and the trial court had ruled that evidence of the defendant's prior contacts with the victim did not constitute prior bad acts under ER 404(b). Halstien, 122 Wash.2d at 125-26, 857 P.2d 270. This court held that prior bad acts included "acts that are merely unpopular or disgraceful" and concluded that defendant's prior contacts with the victim fell within the scope of Rule 404(b). Id. at 126, 857 P.2d 270. However, the defendant in that case had made the victim feel uncomfortable in their prior contacts by "watching her," asking unwelcome and inappropriate questions, and giving her "the creeps." Id. at 112-113, 857 P.2d 270. In this case, neither Ms. Gray nor Ms. West expressed any similar concerns regarding their prior contacts with Appellant. 117. Appellant also argues that admission of the testimony of Ms. Gray and Ms. West "for eventual use in the penalty phase without the appropriate limiting instruction ... permitted the jury to consider Mr. Brown's propensity to `stalk' other victims besides Holly Washa." Brief of Appellant at 132. The testimony did not suggest Appellant was stalking either woman. And the court's limiting instruction on the matter, given twice to the jury, made that point sufficiently clear. 118. Miranda v. Arizona,384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 10 A.L.R.3d 974 (1966). 119. See RAP 2.5(a)(3). 120. Ex. 89, Tape 1, side 1. 121. Ex. 89, Tape 2, side 1. 122. Ex. 89, Tape 3, side 1. 123. Miranda, 384 U.S. at 479, 86 S.Ct. at 1630. 124. See Duckworth v. Eagan,492 U.S. 195, 200-02, 109 S.Ct. 2875, 2879 106 L.Ed.2d 166 (1989); Cooper v. Dupnik,963 F.2d 1220, 1239-40 (9th Cir.) cert. denied, 506 U.S. 953, 113 S.Ct. 407, 121 L.Ed.2d 332 (1992); State v. Creach,77 Wn.2d 194, 461 P.2d 329 (1969). 125. Oregon v. Elstad,470 U.S. 298, 306-08, 105 S.Ct. 1285, 1292, 84 L.Ed.2d 222 (1985). 126. Duckworth, 492 U.S. at 202-04, 109 S.Ct. at 2880. 127. Id. 128. Id. at 202-04, 109 S.Ct. at 2880. 129. People of the Territory of Guam v. Snaer,758 F.2d 1341, 1342-43, (9th Cir.), cert. denied, 474 U.S. 828, 106 S.Ct. 90, 88 L.Ed.2d 74 (1985). 130. Id. at 1342. 131. Id. at 1343. 132. Id. at 1343 (quoting United States v. Noti,731 F.2d 610, 614-15 (9th Cir.1984)). 133. See State v. Koopman,68 Wn.App. 514, 520, 844 P.2d 1024 (1992), rev. denied,121 Wn.2d 1012, 852 P.2d 1091 (1993) (rejecting appellant's claim that her Miranda warnings were defective because she had not been explicitly told she had the right to have counsel present before and during questioning). 137. RCW 9.73.030(1)(b) provides:
"(1) Except as otherwise provided in this chapter, it shall be unlawful for ... the state of Washington, its agencies, and political subdivisions to intercept, or record any: . . . "(b) Private conversation, by any device electronic or otherwise designed to record or transmit such conversation ... without first obtaining the consent of all the persons engaged in the conversation." 138. Supplementation of Report of Proceeding, July 10, 1992, at 2. 139. See Cal.Penal Code §§ 632, 633 and 633.5 (West 1992 Supp.). 145. Gwinner, 59 Wash.App. at 124, 796 P.2d 728 (citing Mollica, 554 A.2d at 1324-26). 146. Id. (citing Mollica, 554 A.2d at 1324). However, the Supreme Court rejected the silver platter doctrine in 1960. Elkins v. United States,364 U.S. 206, 223, 80 S.Ct. 1437, 1447, 4 L.Ed.2d 1669 (1960). 147. Gwinner, 59 Wash.App. at 125, 796 P.2d 728 (citing Mollica, 554 A.2d at 1327). 148. Id. (citing Mollica, 554 A.2d at 1327-29). 149. Id. (citing Mollica, 554 A.2d at 1329-30). 151. Id. (quoting Mollica, 554 A.2d at 1329). 152. Id. 154. Ex. 89, tape 2, side 1. 155. The trial court found an agency relationship was created when the State asked the Palm Springs police to question Appellant further. However, the court concluded that the King County police did not know the statements would be recorded; no evidence suggested King County police were trying to violate Washington law; and the Palm Springs police were following California law. Thus, suppressing the tapes would not further Washington's interest. Report of Proceedings, 4-B, at 53-55. 160. Id. 162. See Draper v. Washington,372 U.S. 487, 496-498, 83 S.Ct. 774, 779-780, 9 L.Ed.2d 899, cert. denied 374 U.S. 850, 83 S.Ct. 1914, 10 L.Ed.2d 1070 and 374 U.S. 852, 83 S.Ct. 1919, 10 L.Ed.2d 1073 (1963). see also State v. Larson,62 Wn.2d 64, 66-67, 381 P.2d 120 (1963). ("Under the rule of the Draper case, we must have a `record of sufficient completeness' for a review of the errors raised by the defendant in a criminal case.") 163. See Ex. 89. The extensive verbatim record of proceedings consists of more than 50 volumes. The Clerk's Papers number more than 1700. The trial court admitted 93 exhibits. 164. Report of Proceedings, September 15, 1993 at 2-12. 165. Wainwright v. Witt,469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985) (quoting Adams v. Texas,448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581 (1980)); State v. Brett,126 Wn.2d 136, 157, 892 P.2d 29 (1995) (quoting State v. Hughes,106 Wn.2d 176, 181, 721 P.2d 902 (1986), quoting Wainwright v. Witt, 469 U.S. at 424, 105 S.Ct. at 852, cert. denied, ___ U.S. ___, 116 S.Ct. 931, 133 L.Ed.2d 858 (1996)). 167. Lockhart v. McCree,476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986); Wainwright v. Witt,469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841; Adams v. Texas,448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581; Witherspoon v. Illinois,391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). 168. Brief of Appellant at 94-101, 105-12. Although Appellant also contends death qualification disproportionately excludes minorities and women from the jury panel, he does so in general terms, and does not claim the jury in this case was disproportionately exclusive of women or minorities. The record does not support that claim. And Appellant presents no evidence showing that death qualification in Washington results in the systematic exclusion of minorities and women from the jury panel. 169. State v. Gunwall,106 Wn.2d 54, 720 P.2d 808, 76 A.L.R.4th 517, (1986). In State v. Hughes,106 Wn.2d 176, 721 P.2d 902 this Court concluded that death qualifying a jury was permissible not only under the federal constitution, but under the state constitution as well. Some cases have relied upon Hughes to reach the same conclusion. See State v. Gentry,125 Wn.2d 570, 634, 888 P.2d 1105, cert. denied, ___ U.S. ___, 116 S.Ct. 131, 133 L.Ed.2d 79 (1995); State v. Kron,63 Wn.App. 688, 695, 821 P.2d 1248, review denied,119 Wn.2d 1004, 832 P.2d 487 (1992); State v. Peerson,62 Wn.App. 755, 779, 816 P.2d 43 (1991), review denied,118 Wn.2d 1012, 824 P.2d 491 (1992). But Hughes did not analyze the six factors in State v. Gunwall to conclude that death qualification is allowed under the Washington Constitution. Thus, in determining whether death qualification violates the Washington Constitution, Hughes and the cases following do not control at this point. See State v. Irizarry,111 Wn.2d 591, 595-97, 763 P.2d 432 (1988) (Utter, J., concurring). 171. State v. Wethered,110 Wn.2d 466, 472-73, 755 P.2d 797 (1988); State v. Olivas,122 Wn.2d 73, 82, 856 P.2d 1076 (1993). See also State v. Brett,126 Wn.2d 136, 159, 892 P.2d 29 (1995) (declining to discuss the defendant's right to an impartial jury under Const. art. I, § 22 because the Gunwall factors were not analyzed) cert. denied, ___ U.S. ___, 116 S.Ct. 931, 133 L.Ed.2d 858 (1996). 180. See THE JOURNAL OF THE WASHINGTON CONSTITUTIONAL CONVENTION 510-11 (Beverly P. Rosenow ed., 1962). 183. Taylor v. Louisiana,419 U.S. 522, 538, 95 S.Ct. 692, 701, 42 L.Ed.2d 690 (1975). 184. Morgan v. Illinois,504 U.S. 719, 725-26, 112 S.Ct. 2222, 2228, 119 L.Ed.2d 492 (1992) (quoting Spaziano v. Florida,468 U.S. 447, 464, 104 S.Ct. 3154, 3164, 82 L.Ed.2d 340 (1984)). 186. Appellant urges this Court to adopt several dissenting opinions of cases from New Jersey and Utah, including State v. Ramseur,106 N.J. 123, 524 A.2d 188, 250-57 (1987), cert. denied, 508 U.S. 947, 113 S.Ct. 2433, 124 L.Ed.2d 653 (1993) State v. Bey (II), 112 N.J. 123, 548 A.2d 887, 900 (1988), State v. Marshall,123 N.J. 1, 586 A.2d 85, 129-34 (1991) and State v. Young,853 P.2d 327, 342-43 (Utah 1993), from which Appellant cites extensively to support his claim that death qualification violates the Washington constitution. The Gunwall analysis contradicts his claim. Although informative, those dissenting opinions do not affect our independent state constitutional analysis. 188. State v. Mak,105 Wn.2d 692, 707, 718 P.2d 407, cert. denied, 479 U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 599 (1986), sentence vacated on writ of habeas corpus sub nom. Kwan Fai Mak v. Blodgett,754 F.Supp. 1490 (W.D.Wash.1991), aff'd,970 F.2d 614 (9th Cir.1992), cert. denied, 507 U.S. 951, 113 S.Ct. 1363, 122 L.Ed.2d 742 (1993). 189. Hughes, 106 Wash.2d at 185, 721 P.2d 902 (citing Hayes v. Missouri,120 U.S. 68, 70-71, 7 S.Ct. 350, 351-52, 30 L.Ed. 578 (1887)). 190. Id. at 185-86, 721 P.2d 902 (quoting Smith v. Balkcom,660 F.2d 573, 579 (5th Cir.1981), modified on other grounds,671 F.2d 858 (5th Cir.), cert. denied, 459 U.S. 882, 103 S.Ct. 181, 74 L.Ed.2d 148 (1982)). 191. Id. at 186, 721 P.2d 902 (quoting Smith, 660 F.2d at 579). 192. Id. at 186, 721 P.2d 902 (quoting Lockhart v. McCree, 476 U.S. at 184, 106 S.Ct. at 1770). 193. Grigsby v. Mabry,758 F.2d 226 (8th Cir. 1985), rev'd sub nom. Lockhart v. McCree,476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986). 194. Hughes, 106 Wash.2d at 182-84, 721 P.2d 902. Hughes also rejects Appellant's suggestion that separate juries should be required for the guilt and penalty phase. Id. at 186-88, 721 P.2d 902. 195. Former RCW 10.49.050 provided:
"No person whose opinions are such as to preclude him from finding any defendant guilty of an offense punishable with death shall be compelled or allowed to serve as a juror on the trial of any indictment or information for such an offense." 196. Witherspoon, v. Illinois,391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). 198. Spaziano v. Florida, 468 U.S. at 464, 104 S.Ct. at 3164. 199. Wainwright v. Witt,469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). 200. Witt, 469 U.S. at 430, 105 S.Ct. at 855. 201. Brett, 126 Wash.2d at 158, 892 P.2d 29; Gentry, 125 Wash.2d at 634, 888 P.2d 1105 (citing State v. Rupe,108 Wn.2d 734, 759, 743 P.2d 210 (1987), cert. denied, 486 U.S. 1061, 108 S.Ct. 2834, 100 L.Ed.2d 934 (1988); Mak, 105 Wash.2d at 707, 718 P.2d 407). 204. Witt, 469 U.S. at 428, n. 9, 105 S.Ct. at 854, n. 9 (quoting Reynolds v. United States,98 U.S. 145, 156-57, 25 L.Ed. 244 (1878)). 205. Brett, 126 Wash.2d at 157, 892 P.2d 29; Gentry, 125 Wash.2d at 635, 888 P.2d 1105; Wainwright, 469 U.S. at 424, 105 S.Ct. at 852. 206. Report of Proceedings, November 4, 1993, at 79. 207. Report of Proceedings, November 4, 1993, at 79. 208. Report of Proceedings, November 4, 1993, at 84. 209. Report of Proceedings, November 4, 1993, at 93. 210. Report of Proceedings, November 3, 1993, at 95. 211. Report of Proceedings, November 3, 1993, at 101. Ms. Henderson crossed her arms, held her hand up and sat back. 212. Clerk's Papers at 1423. 213. State v. Rice,110 Wn.2d 577, 603, 757 P.2d 889 (1988), cert. denied, 491 U.S. 910, 109 S.Ct. 3200, 105 L.Ed.2d 707 (1989); State v. Benn,120 Wn.2d 631, 657-58, 845 P.2d 289, cert. denied, 510 U.S. 944, 114 S.Ct. 382, 126 L.Ed.2d 331 (1993). 214. Clerk's Papers at 1175. 215. Brett, 126 Wash.2d at 171, 892 P.2d 29, (citation omitted). 216. Id.; Gentry, 125 Wash.2d at 613, 888 P.2d 1105, (citation omitted). 219. Clerk's Papers at 1438. 220. RCW 9A.08.010(1)(a) states that "[a] person acts with intent or intentionally when he acts with the objective or purpose to accomplish a result which constitutes a crime." 221. RCW 9A.32.030(1)(a) provides:
"Murder in the first degree. (1) A person is guilty of murder in the first degree when: "(a) With a premeditated intent to cause the death of another person, he or she causes the death of such person or of a third person...." 222. Clerk's Papers at 1. Under RCW 9A.32.030(1)(a), a person is guilty of murder in the first degree when, with premeditated intent to cause the death of another person, the accused causes the death of that person or of a third person. RCW 10.95.020(9) provides that a person is guilty of aggravated first degree murder by committing first degree murder "in the course of, in the furtherance of, or in immediate flight from ... (a) Robbery in the first or second degree; (b) Rape in the first or second degree ... (d) Kidnapping in the first degree[.]" 227. 2 WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR. Substantive Criminal Law § 7.5, at 225 (discussing "causal connection" necessary between felony and murder in felony murder cases). 231. Id. 233. Id. 234. Appellant conceded at trial the kidnapping was a continuing course of conduct and the killing was committed "in immediate flight from" the kidnapping. The record shows he kept Ms. Washa captive until her death. Thus, the kidnapping did not terminate until Appellant killed her and immediately left for California. The killing was committed "in the course of" and "in immediate flight from" the kidnapping. 235. Clerk's Papers at 1410. 236. Id. 242. Id. 244. Scott, 110 Wash.2d at 692, 757 P.2d 492 (citation omitted). 246. Scott, 110 Wash.2d at 690, 757 P.2d 492 (citation omitted). 247. See Clerk's Papers at 1411-1441 ("Court's Instructions to the Jury"). 248. See Appellant's proposed instructions P-9A, P-9B, P-11, P12, P-13, P-17, P-21, P-22 and P-23. 249. Compare Zant v. Stephens,462 U.S. 862, 873-80, 103 S.Ct. 2733, 2740-44, 77 L.Ed.2d 235 (1983) (reviewing Georgia's "non-weighing" death penalty statute) with Stringer v. Black,503 U.S. 222, 229-35, 112 S.Ct. 1130, 1135-39, 117 L.Ed.2d 367 (1992) (concluding Mississippi has a "weighing" death penalty statute). 250. In Williams v. Calderon,52 F.3d 1465, 1478 n. 11-13 (9th Cir.1995), cert. denied, ___ U.S. ___, 116 S.Ct. 937, 133 L.Ed.2d 863 (1996), the United States Court of Appeals for the Ninth Circuit noted states with weighing or non-weighing death penalty statutes, according to state and federal court decisions.
The following states were identified or treated as having "non-weighing" death penalty statutes: Georgia,Zant v. Stephens,462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983)(Ga.Code.Ann. § 17-10-30 (Michie 1994)); Illinois,People v. Todd,154 Ill.2d 57, 180 Ill.Dec. 676, 684-85, 607 N.E.2d 1189, 1197-98 (1992) (Ill.Comp.Stat.Ann. § 5/9-1 (1992)), cert. denied, 510 U.S. 944, 114 S.Ct. 381, 126 L.Ed.2d 331 (1993); Kentucky,Wilson v. Commonwealth,836 S.W.2d 872, 891 (Ky.1992) (Ky.Rev.Stat.Ann. § 532.025 (Michie/Bobbs-Merrill 1994)), cert. denied, 507 U.S. 1034, 113 S.Ct. 1857, 123 L.Ed.2d 479 (1993); Louisiana,Ward v. Whitley, 21 F.3d 1355, 1365 (5th Cir.1994) (La.Code.Crim.Proc.Ann. art. 905.3-.4 (West 1994)), cert. denied, 513 U.S. 1192, 115 S.Ct. 1257, 131 L.Ed.2d 137 (1995); Virginia,Briley v. Bass,742 F.2d 155, 166 (4th Cir.) (Va.Code Ann. §§ 19.2-264.2, 19.2-264.4 (Michie 1994)), cert. denied, 469 U.S. 893, 105 S.Ct. 270, 83 L.Ed.2d 206 (1984); Delaware,Bailey v. Snyder,855 F.Supp. 1392, 1408-10 (D.Del.1993) (Del.Code Ann. tit. 11, § 4209 (1994)) aff'd, 68 F.3d 736 (3rd Cir.1995), cert. denied, ___ U.S. ___, 116 S.Ct. 807, 133 L.Ed.2d 754 (1996) and Missouri,State v. LaRette,648 S.W.2d 96, 102 (Mo.), (Mo.Ann.Stat. §§ 565.030, 565.032 (Vernon 1994)). cert. denied, 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983). The following states were identified or treated as having "weighing" death penalty statutes: Alabama,Lawhorn v. State,581 So.2d 1159, 1176 (Ala.Crim.App.1990) (Ala.Code §§ 13A-5-46 to -49 (1994)), aff'd, Ex parte Lawhorn,581 So.2d 1179 (Ala.1991) cert. denied, 502 U.S. 970, 112 S.Ct. 445, 116 L.Ed.2d 463 (1991); Arizona,Richmond v. Lewis,506 U.S. 40, 45-49, 113 S.Ct. 528, 534-35, 121 L.Ed.2d 411 (1992) (Ariz.Rev. Stat.Ann. § 13-703 (1994)); Arkansas,Ford v. Lockhart,861 F.Supp. 1447, 1453 (E.D.Ark.1994) (Ark.Code Ann. §§ 5-4-602 to -604 (1994)); Colorado,People v. White,870 P.2d 424, 447-49 (Colo.) (Colo.Rev.Stat. § 16-11-103 (1994)), cert. denied, 513 U.S. 841, 115 S.Ct. 127, 130 L.Ed.2d 71 (1994); Florida,Parker v. Dugger,498 U.S. 308, 318, 111 S.Ct. 731, 737-38, 112 L.Ed.2d 812 (1991) (Fla.Stat.Ann. § 921.141 (West 1995)); Indiana,Bellmore v. State,602 N.E.2d 111, 129-30 (Ind.1992) (Ind.Code Ann. § 35-50-2-9 (West 1994)); Mississippi,Stringer v. Black,503 U.S. 222, 229-30, 112 S.Ct. 1130, 1136, 117 L.Ed.2d 367 (1992) (Miss.Code Ann. § 99-19-101 (1993)); Nebraska,State v. Reeves, 239 Neb. 419, 476 N.W.2d 829, 836 (1991) (Neb.Rev.Stat. §§ 29-2522 to 29-2523 (1993)), cert. denied, 506 U.S. 837, 113 S.Ct. 114, 121 L.Ed.2d 71 (1992); Nevada,Canape v. State, 109 Nev. 864, 859 P.2d 1023, 1031-35 (1993) (Nev.Rev.Stat. §§ 200.030, 200.033 (1993)), cert denied, 513 U.S. 862, 115 S.Ct. 176, 130 L.Ed.2d 112 (1994); New Mexico,State v. Henderson,109 N.M. 655, 789 P.2d 603, 609-10 (1990) (N.M.Stat.Ann. §§ 31-20A-2, 31-20A-5 (1995)); North Carolina,Smith v. Dixon,14 F.3d 956, 974 (4th Cir.) (en banc) (N.C.Gen. Stat. § 15A-2000 (1994)), cert. denied, 513 U.S. 841, 115 S.Ct. 129, 130 L.Ed.2d 72 (1994); Ohio,State v. Davis,38 Ohio St.3d 361, 528 N.E.2d 925, 933 n. 11 (1988) (Ohio Rev.Code Ann. §§ 2929.03-.04 (Anderson 1993)), cert. denied, 488 U.S. 1034, 109 S.Ct. 849, 102 L.Ed.2d 980 (1989); Oklahoma,Stafford v. Saffle,34 F.3d 1557, 1568 (10th Cir.1994) (Okla.Stat.Ann. §§ 701.10-.12 (West 1995)) cert. denied 514 U.S. 1099, 115 S.Ct. 1830, 131 L.Ed.2d 751 (1995); Pennsylvania,Commonwealth v. Holcomb,508 Pa. 425, 498 A.2d 833, 849-51 & n. 16 (1985) (42 Pa.Cons.Stat.Ann. § 9711 (1994)), cert. denied, 475 U.S. 1150, 106 S.Ct. 1804, 90 L.Ed.2d 349 (1986); Tennessee,State v. Howell,868 S.W.2d 238, 259-62 (Tenn.1993) (Tenn.Code Ann. § 39-13-204 (1994)), cert. denied, 510 U.S. 1215, 114 S.Ct. 1339, 127 L.Ed.2d 687 (1994); Utah,State v. Archuleta,850 P.2d 1232, 1247-48 (Utah) (Utah Code Ann. §§ 76-3-207, 76-5-202 (1994), as interpreted by State v. Pierre,572 P.2d 1338, 1347-48 (Utah 1977)), cert. denied, 510 U.S. 979, 114 S.Ct. 476, 126 L.Ed.2d 427 (1993); Wyoming,Zant v. Stephens, 462 U.S. at 874 n. 12, 103 S.Ct. at 2741 n. 12 (1983) (Wyo.Stat. § 6-2-102 (1988)), as interpreted by Hopkinson v. State,632 P.2d 79, 171 (Wyo.1981), cert. denied, 455 U.S. 922, 102 S.Ct. 1280, 71 L.Ed.2d 463 (1982). 251. E.g., Parker v. Dugger,498 U.S. 308, 318, 111 S.Ct. 731, 737-38, 112 L.Ed.2d 812 (1991). 252. Richmond v. Lewis,506 U.S. 40, 47, 113 S.Ct. 528, 534-35, 121 L.Ed.2d 411 (1992). 253. Id. 254. Id. at 46, 113 S.Ct. at 534. 255. Stringer, 503 U.S. at 236, 112 S.Ct. at 1139-40. 256. Stringer, 503 U.S. at 232, 112 S.Ct. at 1137. 257. Id. at 230, 112 S.Ct. at 1136-37 (discussing Georgia death penalty statute). 258. Id. at 233, 112 S.Ct. at 1138 (discussing Louisiana death penalty statute). 259. RCW 10.95.060(4). 261. Williams v. Calderon,52 F.3d 1465, 1477-78 (9th Cir.1995) (footnotes omitted) cert. denied, ___ U.S. ___, 116 S.Ct. 937, 133 L.Ed.2d 863 (1996). 262. In Campbell v. Blodgett,978 F.2d 1502, 1512-13 (9th Cir.1992), the United States Court of Appeals for the Ninth Circuit determined that nothing in RCW 10.95 suggests the jury is required to engage in a balancing test, or impose the death penalty after finding the factors "in balance." 268. Brett, 126 Wash.2d at 182, 892 P.2d 29 (citation omitted). 269. Clerk's Papers at 1419-20 (Instruction 7 and Instruction 8). 270. See Tuilaepa v. California,512 U.S. 967, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994). 271. Tuilaepa, at 977-79, 114 S.Ct. at 2638. 272. RCW 10.95.070(8) specifically provides that a jury may consider whether there is a likelihood the defendant will pose a danger to others in the future. 273. Zant, 462 U.S. at 890, 103 S.Ct. at 2750. 274. Stringer, 503 U.S. at 231, 112 S.Ct. at 1137. 275. Id. 276. Zant, 462 U.S. at 879, 103 S.Ct. at 2743-44. 277. Clerk's Papers at 1413 (Instruction 1). 278. Clerk's Papers at 1581 (Instruction 1). 279. E.g., State v. Bartholomew, 101 Wash.2d at 640-41, 683 P.2d 1079. 280. In Appellant's brief, the argument heading for this section states: "THE STATE FAILED TO SERVE ITS NOTICE OF INTENT TO SEEK THE DEATH PENALTY ON MR. BROWN OR HIS ATTORNEYS WITHIN 30 DAYS OF THE ARRAIGNMENT, REQUIRING THIS COURT TO STRIKE THE DEATH SENTENCE IN THIS CASE." Brief of Appellant at 55. However, in the argument section itself, Appellant only claims "there is absolutely no proof" the State served him or his attorneys. Id. at 56. 281. RCW 10.95.040(1). 282. RCW 10.95.040(2). 283. RCW 10.95.040(3). 284. Clerk's Papers at 37. 285. Brief of Appellant at 56. 286. Brief of Appellant at 56, n. 8. 288. Clerk's Papers at 38, 47-49. 289. Clerk's Papers at 275. 290. Clerk's Papers at 652-64. 291. Id. at 665-80. 292. Id. at 686. 293. Id.; Report of Proceedings, February 25, 1993 at 26-34. 294. Clerk's Papers at 686. 296. Id. 297. See CrR 1.1. 298. Yates, 111 Wash.2d at 797, 765 P.2d 291 (quoting Criminal Rules Task Force, Washington Proposed Rules of Criminal Procedure 77 (West Pub'g Co. ed. 1971)). 301. Id. 302. Clerk's Papers at 669-70, n. 1. 304. Id. 306. Id. 308. Id. 309. Id. 310. See CrR 1.1. 311. RCW 10.95 et seq. governs criminal proceedings involving the death penalty in this state. RCW 10.95.060, which sets forth the procedure to be followed in the penalty phase of a capital case, does not address the subject of discovery. Nor is that subject addressed elsewhere in the statute. See generally RCW 10.95. 314. The State was aware the Gentry case was pending at the time. Report of Proceeding, December 15, 1993, at 108. In offering Mr. Washa's testimony the State explained: "While we wanted to push hard and ask this Court to allow this evidence in front of the jury, we understand that that would put this Court in a very difficult position, but we would like to preserve the issue and be able to cross-appeal it. So essentially what we're asking this Court to do is make a ruling at this time that we don't like so that we would be able to cross-appeal." Id. 315. Report of Proceedings, December 15, 1993, at 109.
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