427 P.3d 621 (Wash. 2018), 88086-7, State v. Gregory

Docket Nº88086-7
Citation427 P.3d 621
Opinion JudgeFAIRHURST, C.J.
Party NameSTATE of Washington, Respondent, v. Allen Eugene GREGORY, Appellant.
AttorneyNeil Martin Fox, Law Office of Neil Fox, PLLC, Lila Jane Silverstein. Washington Appellate Project. for Appellant. Kathleen Proctor, John Martin Neeb, Pierce County Prosecuting Attorney Office, for Respondent. Jeffery Patton Robinson, Attorney at Law, Cassandra Stubbs, Attorney(s) for Amicus Curi...
Judge PanelWE CONCUR: Wiggins, J., González, J. (result only), Gordon McCloud, J., Yu, J. JOHNSON, J. (concurring) Owens, J., Madsen, J., Stephens, J.
Case DateOctober 11, 2018
CourtSupreme Court of Washington

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427 P.3d 621 (Wash. 2018)

STATE of Washington, Respondent,

v.

Allen Eugene GREGORY, Appellant.

No. 88086-7

Supreme Court of Washington

October 11, 2018

Oral Argument Date: February 25, 2016

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Appeal from Superior Court, Hon. Rosanne Buckner, Judge, Pierce County Superior Court (No. 98-1-04967-9)

Neil Martin Fox, Law Office of Neil Fox, PLLC, Lila Jane Silverstein. Washington Appellate Project. for Appellant.

Kathleen Proctor, John Martin Neeb, Pierce County Prosecuting Attorney Office, for Respondent.

Jeffery Patton Robinson, Attorney at Law, Cassandra Stubbs, Attorney(s) for Amicus Curiae (American Civil Liberties Union Foundation).

John Winn Wolfe, Aravind Swaminathan, Marc Shapiro, Orrick, Herrington & Sutcliffe LLP, Nancy Lynn Talner, Attorney at Law, Attorney(s) for Amicus Curiae (American Civil Liberties Union of Washington).

Robert S. Chang, Jessica Levin, Seattle University School of Law, Attorney(s) for Amicus Curiae (Fred T. Korematsu Center for Law and Equality).

Paul J. Lawrence, Nicholas W. Brown, Pacifica Law Group LLP, Attorney(s) for Amicus Curiae (Social Scientists and Researchers).

James Elliot Lobsenz, Carney Badley Spellman, Attorney(s) for Amicus Curiae (Washington Coalition to Abolish the Death Penalty).

OPINION

FAIRHURST, C.J.

[¶ 1] Washington’s death penalty laws have been declared unconstitutional not once, not twice, but three times. State v. Baker, 81 Wn.2d 281, 501 P.2d 284 (1972); State v. Green, 91 Wn.2d 431, 588 P.2d 1370 (1979); State v. Frampton, 95 Wn.2d 469, 627 P.2d 922 (1981).1 And today, we do so again. None of these prior decisions held that the death penalty is per se unconstitutional, nor do we.

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The death penalty is invalid because it is imposed in an arbitrary and racially biased manner. While this particular case provides an opportunity to specifically address racial disproportionality, the underlying issues that underpin our holding are rooted in the arbitrary manner in which the death penalty is generally administered. As noted by appellant, the use of the death penalty is unequally applied— sometimes by where the crime took place, or the county of residence, or the available budgetary resources at any given point in time, or the race of the defendant. The death penalty, as administered in our state, fails to serve any legitimate penological goal; thus, it violates article I, section 14 of our state constitution.

I. FACTS AND PROCEDURAL HISTORY

A. Factual background

[¶ 2] In 1996, Allen Eugene Gregory raped, robbed, and murdered G.H. in her home.2 In 1998, Gregory was investigated for a separate rape crime based on allegations by R.S. In connection with that investigation, the Tacoma Police Department obtained a search warrant for Gregory’s vehicle. In the vehicle, police located a knife that was later determined to be consistent with the murder weapon used to kill G.H. Police also obtained Gregory’s blood sample during the rape investigation and used that sample to connect him to the deoxyribonucleic acid (DNA) found at G.H.’s crime scene. State v. Gregory, 158 Wn.2d 759, 812, 147 P.3d 1201 (2006) (Gregory I), overruled on other grounds by

State v. W.R., 181 Wn.2d 757, 336 P.3d 1134 (2014). After matching Gregory’s DNA to that found at G.H.’s murder scene, the State charged Gregory with aggravated first degree murder. Id. Gregory was also charged and convicted of three counts of first degree rape stemming from R.S.’s allegations.

B. Procedural history

[¶ 3] In 2001, a jury convicted Gregory of aggravated first degree murder. Id. at 777, 812, 147 P.3d 1201. The same jury presided over the penalty phase of his trial. Id. at 812, 147 P.3d 1201. The jury concluded there were not sufficient mitigating circumstances to merit leniency and sentenced Gregory to death. Id. When Gregory appealed his murder conviction and death sentence, we consolidated our direct review of those issues with Gregory’s appeal of his separate rape convictions. Id. at 777, 147 P.3d 1201. We reversed the rape convictions, affirmed the aggravated first degree murder conviction, and reversed the death sentence. Id. at 777-78, 147 P.3d 1201. We based our reversal of Gregory’s death sentence on two grounds: (1) "the prosecutor engaged in misconduct during closing arguments in the penalty phase of the murder trial" and (2) "the rape convictions," which we reversed, "were relied upon in the penalty phase of the murder case." Id. at 777, 147 P.3d 1201. We remanded the case for resentencing. On remand, the trial court impaneled a new jury to preside over a second special sentencing proceeding. Again the jury determined there were not sufficient mitigating circumstances to merit leniency and sentenced Gregory to death. Gregory appealed his sentence, raising numerous issues. In addition to any appeal, our court is statutorily required to review all death sentences. RCW 10.95.130(1). Pursuant to statute, we consolidate the direct appeal and death sentence review. Id.

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[¶ 4] Following remand, the State also prepared for a new rape trial. The State conducted interviews with R.S., but the interviews revealed that she had lied at the first trial. The State moved to dismiss the rape charges because R.S.’s inconsistent statements "ma[d]e it impossible for the State to proceed forward on [count I and count II]" and, given her statements, "the State d[id] not believe there [was] any reasonable probability of proving the defendant is guilty of [count III]." Clerk’s Papers at 519. The trial court dismissed the rape charges with prejudice.

II. ISSUES3

A. Whether Washington’s death penalty is imposed in an arbitrary and racially biased manner.

B. Whether statutory proportionality review of death sentences alleviates the alleged constitutional defects of the death penalty.

C. Whether the court should reconsider arguments pertaining to the guilt phase of Gregory’s trial.

III. ANALYSIS

A. Historical background of the death penalty in Washington

[¶ 5] A brief history of the various death penalty schemes in Washington serves to illustrate the complex constitutional requirements for capital punishment. See also State v. Bartholomew, 98 Wn.2d 173, 180-92, 654 P.2d 1170 (1982) (Bartholomew I), vacated, 463 U.S. 1203, 103 S.Ct. 3530, 77 L.Ed.2d 1383 (1983) (similar historical discussion). In 1972, the United States Supreme Court nullified capital punishment laws in 39 states, including Washington, and the District of Columbia. Furman v. Georgia, 408 U.S. 238, 305, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972); Baker, 81 Wn.2d at 282, 501 P.2d 284; State v. Lord, 117 Wn.2d 829, 908, 822 P.2d 177 (1991) ("Furman prohibits sentencing procedures which create a substantial risk that death will be imposed in an arbitrary and capricious manner. In other words, where the death penalty is imposed wantonly and freakishly, it is unconstitutional." (citation omitted) ). Three years later, by way of a ballot initiative, Washington enacted a new capital punishment law that required mandatory imposition of the death penalty for specified offenses. Initiative 316, LAWS OF 1975 2d Ex. Sess., ch. 9, repealed by LAWS OF 1981, ch. 138, § 24. But this, too, proved problematic. In 1976, the United States Supreme Court held that mandatory imposition of death sentences for specified homicides is unconstitutional. Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) (plurality opinion); Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). Consequently, we declared our capital punishment law unconstitutional. Green, 91 Wn.2d at 447, 588 P.2d 1370. In contrast, Georgia’s capital punishment law was upheld. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (plurality opinion). 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." Id. at 189, 96 S.Ct. 2909.

[¶ 6] Our legislature enacted a new capital punishment law, allowing for the imposition of the death penalty where the jury, in a subsequent sentencing proceeding, found an aggravating circumstance, no mitigating factors sufficient to merit leniency, guilt with clear certainty, and a probability of future criminal acts. LAWS OF 1977, 1st Ex. Sess., ch. 206 (codified in chapter 9A.32 RCW and former chapter 10.94 RCW, repealed by LAWS OF 1981, ch. 138, § 24). The statute was found unconstitutional because it allowed imposition of the death penalty for those who pleaded not guilty but did not impose the death penalty when there was a guilty plea. Frampton, 95 Wn.2d at 480, 627 P.2d 922. The legislature again refined our capital punishment law in an attempt to conform to various legal directives. Ch. 10.95 RCW. Our current statute

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is nearly identical to the Georgia statute. State v. Harris, 106 Wn.2d 784, 798, 725 P.2d 975 (1986) ("The language in our statute is identical to that used in the Georgia statute."); cf. Bartholomew I, 98 Wn.2d at 188, 654 P.2d 1170 ("The statutory aggravating circumstances are similar but not identical to those of the approved Georgia statute.").

[¶ 7] Chapter 10.95 RCW provides for a bifurcated proceeding— first the defendant is found guilty of aggravated first degree murder, and then a special sentencing proceeding is held before either a judge or a jury to determine whether there are sufficient mitigating circumstances to...

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52 practice notes
  • State v. Williams, 112320 WACA, 79267-9-I
    • United States
    • Washington Court of Appeals of Washington
    • 23 Noviembre 2020
    ...State v. Davis, 175 Wn.2d 287, 345, 290 P.3d 43 (2012), abrogated on other grounds by State v. Gregory, 192 Wn.2d 1, 427 P.3d 621 (2018). However, when there is overwhelming evidence of the defendant's guilt, cumulative errors do not require reversal. In re Pers. Re......
  • State v. Anderson, 021919 WACA, 75074-7-I
    • United States
    • Washington Court of Appeals of Washington
    • 19 Febrero 2019
    ...re Pers. Restraint of Cross, 180 Wn.2d 664, 690, 327 P.3d 660 (2014) (abrogated on other grounds by State v. Gregory, __Wn.2d__, 427 P.3d 621 (2018)). Here, Anderson raised the issue of her Sixth Amendment right to counsel of choice in her initial motion for substit......
  • 432 P.3d 454 (Wash.App. Div. 2 2019), 49245-8-II, State v. Ramirez
    • United States
    • Washington Court of Appeals of Washington
    • 3 Enero 2019
    ...re Pers. Restraint of Cross, 180 Wn.2d 664, 690, 327 P.3d 660 (2014), abrogated on other grounds by State v. Gregory, __ Wn.2d __, 427 P.3d 621 (2018). The cumulative error doctrine does not apply when there are no errors or where the errors are few and have little or no ......
  • State v. Ramirez, 010319 WACA, 49245-8-II
    • United States
    • Washington Court of Appeals of Washington
    • 3 Enero 2019
    ...Restraint of Cross, 180 Wn.2d 664, 690, 327 P.3d 660 (2014), abrogated on other grounds by State v. Gregory, ___Wn.2d ___, 427 P.3d 621 (2018). The cumulative error doctrine does not apply when there are no errors or where the errors are few and have little or no effect ......
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49 cases
  • State v. Williams, 112320 WACA, 79267-9-I
    • United States
    • Washington Court of Appeals of Washington
    • 23 Noviembre 2020
    ...State v. Davis, 175 Wn.2d 287, 345, 290 P.3d 43 (2012), abrogated on other grounds by State v. Gregory, 192 Wn.2d 1, 427 P.3d 621 (2018). However, when there is overwhelming evidence of the defendant's guilt, cumulative errors do not require reversal. In re Pers. Re......
  • State v. Anderson, 021919 WACA, 75074-7-I
    • United States
    • Washington Court of Appeals of Washington
    • 19 Febrero 2019
    ...re Pers. Restraint of Cross, 180 Wn.2d 664, 690, 327 P.3d 660 (2014) (abrogated on other grounds by State v. Gregory, __Wn.2d__, 427 P.3d 621 (2018)). Here, Anderson raised the issue of her Sixth Amendment right to counsel of choice in her initial motion for substit......
  • 432 P.3d 454 (Wash.App. Div. 2 2019), 49245-8-II, State v. Ramirez
    • United States
    • Washington Court of Appeals of Washington
    • 3 Enero 2019
    ...re Pers. Restraint of Cross, 180 Wn.2d 664, 690, 327 P.3d 660 (2014), abrogated on other grounds by State v. Gregory, __ Wn.2d __, 427 P.3d 621 (2018). The cumulative error doctrine does not apply when there are no errors or where the errors are few and have little or no ......
  • State v. Ramirez, 010319 WACA, 49245-8-II
    • United States
    • Washington Court of Appeals of Washington
    • 3 Enero 2019
    ...Restraint of Cross, 180 Wn.2d 664, 690, 327 P.3d 660 (2014), abrogated on other grounds by State v. Gregory, ___Wn.2d ___, 427 P.3d 621 (2018). The cumulative error doctrine does not apply when there are no errors or where the errors are few and have little or no effect ......
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