State v. Bartholomew
| Decision Date | 24 November 1982 |
| Docket Number | No. 48346-9,48346-9 |
| Citation | 98 Wn.2d 173,654 P.2d 1170 |
| Parties | STATE of Washington, Respondent, v. Dwayne Earl BARTHOLOMEW, Appellant. |
| Court | Washington Supreme Court |
Murray Anderson, Tacoma Timothy Ford, Seattle, Douglas Tufts, Dept. of Assigned Counsel, Tacoma, for appellant.
Michael Johnson, Deputy Pros. Atty., Tacoma, for respondent.
C. Danny Clem, Pros. Atty., Ronald Franz, Deputy Pros. Atty., Port Orchard, amicus curiae.
Defendant Dwayne Earl Bartholomew appeals his conviction of aggravated first degree murder and sentence of death. Defendant presents five issues in this appeal: two relate to the sentence, and three to the conviction. The issues raised by defendant in respect of his sentence are:
1. Is the capital punishment statute, RCW 10.95, unconstitutional under the Eighth and Fourteenth Amendments on its face or as applied to defendant in this case?
2. Is the sentence of death imposed upon defendant invalid under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), by reason of jurors' being excluded for cause because they "thought" or "believed" that they could not vote for the death penalty no matter what the evidence showed?
The issues raised by defendant with respect to his conviction are:
3. Were defendant's due process rights violated by the prosecutor's failure to disclose before trial the results of polygraph tests which suggested that the prosecutor's key witness lied in respect of a critical piece of testimony?
4. Is defendant entitled to an evidentiary hearing to determine whether a jury selected in accordance with Witherspoon v. Illinois, supra, is biased with respect to defendant's guilt?
5. Was one of the alternative forms of aggravated first degree murder submitted to the jury unsupported by the evidence?
Our resolution of these issues is as follows:
1. Portions of the capital punishment statute (RCW 10.95) are unconstitutional to the extent that they fail to limit in any significant way the evidence that the prosecution may present at the sentencing phase of capital proceedings. Accordingly, the sentence of death imposed in this case is constitutionally invalid.
We do not find it necessary, however, to strike down the statutory scheme as a whole, since the constitutional defects which compel us to invalidate defendant's sentence of death may be remedied by restrictive application and by the severability provision, RCW 10.95.900.
2. Our resolution of the first issue makes it unnecessary to reach the second ground on which defendant challenges his sentence.
3. Defendant's due process rights were not violated by nondisclosure of polygraph results for which he made no request before his trial.
4. Defendant is not entitled to an evidentiary hearing to determine whether the Witherspoon-qualified jury was prone to favor the prosecution in the trial on guilt or innocence.
5. There was substantial evidence from which the jury could have found each of the alternative forms of aggravated first degree murder.
In sum, therefore, we affirm defendant's conviction but invalidate the sentence of death imposed upon him. This resolution of the case raises a sixth issue, not considered by the parties to the appeal: Whether the appropriate recourse under RCW 10.95 following invalidation of a death sentence is to remand to the trial court to sentence defendant to life imprisonment without possibility of parole (RCW 10.95.090) or to remand for the impaneling of a second jury to consider anew whether to impose the death sentence (RCW 10.95.050(4)). We conclude that the appropriate procedure is to remand the matter to the trial court to sentence defendant to life imprisonment without possibility of parole.
Defendant was convicted of the aggravated first degree murder of Paul Edward Turner. The victim was an attendant at a Tacoma laundromat. He was shot once in the head with a .22 caliber weapon on the evening of August 1, 1981. A second bullet was found lodged in a counter near the body. On August 5, 1981, Rodney Leroy Bartholomew told the police that his brother, the defendant, had committed the crime. Defendant was subsequently arrested and admitted that he had robbed the laundromat and had shot the victim accidentally in the course of the robbery.
Defendant's trial began with jury selection on November 30, 1981. Forty-one prospective jurors were called and questioned. Six were excused for cause because they indicated they could not vote for the death penalty. Three of those thus excused said they had conscientious scruples against the imposition of the death penalty which they "thought" or "believed" would prevent them from returning a death sentence.
The prosecution's principal witness was defendant's brother, Rodney. He testified that he and his girlfriend, Tracy Dormady, went to the laundromat on the evening of August 1, 1981, to do their laundry. Defendant was sitting in his car in the parking lot when they arrived. While waiting for the laundry, Rodney sat with defendant in his car. Defendant told Rodney that he intended to rob the place and "leave no witnesses." Rodney and Tracy left the laundromat at 9:45 p.m., shortly before it was due to close. Soon after they arrived at Tracy's house, defendant arrived. Tracy asked him if he had killed the attendant and defendant said "he had put two bullets in the kid's head."
Tracy also testified to the events of this evening. Her testimony differed in some details from Rodney's, but she said she heard defendant say he intended to leave no witnesses. Both Rodney and Tracy denied helping defendant in any way with the robbery.
The only defense witness was defendant. His testimony was similar to the statements he made to the police after his arrest. He testified that he went to the laundromat intending to rob it. He threatened the victim with his gun and forced him to lie on the floor. While defendant was removing the money from a cash drawer, his gun accidentally fired, discharging a bullet into the victim's head. As defendant fled with $237 from the cash drawer, the gun fired a second time.
Defendant denied telling Rodney and Tracy that he intended to leave no witnesses. Moreover, he testified that Rodney assisted in the robbery. According to defendant, Rodney did not leave before the laundromat closed, but waited outside until the attendant locked the doors. He then persuaded the attendant to unlock them on the pretense of having to use the bathroom. This allowed defendant to follow Rodney into the laundromat. After Rodney had left, defendant proceeded with the robbery.
The jury was instructed on aggravated murder in the first degree and murder in the first degree. After deliberating 5 hours, the jury returned a verdict of guilty of aggravated first degree murder.
The sentencing phase of the proceedings took place the following day. Pursuant to RCW 10.95.060(2), the prosecution was the first to present evidence. The prosecution's first witness was Stanley Bell, a cellmate of defendant. Bell testified that defendant told him he made the victim lie on the floor, asked him his age, was told 17, and replied "Too bad" and shot him. Bell further testified that defendant had threatened to kill both Rodney and Bell if they testified against him.
The prosecution then called two witnesses who testified that on October 30, 1980, and February 12, 1981, defendant had robbed grocery stores where they worked. These witnesses had picked defendant out of a lineup while the trial of the present charge was pending. Defendant had not been charged with these robberies, and there was no other evidence connecting him to them.
The prosecution's next witness was a police officer who testified that on September 25, 1980, he responded to a burglar alarm in a church and found defendant inside. A deferred sentence for criminal trespass arising out of that event was admitted into evidence. A second police officer testified to an incident on July 2, 1981, where defendant was found unconscious in a cow pasture. Defendant struck several of the aid crew who revived him and struck the witness when he attempted to subdue him. Assault charges filed as a result of this incident, but never disposed of, were admitted into evidence.
The prosecution's last witness was a psychiatrist who testified that defendant was competent and not insane. When asked if defendant would be a danger to people in prison, the witness said, "I see no reason for him to stop committing crimes."
The defense called only one witness, another psychiatrist. This witness testified that defendant suffered a "profound characterological disorder" which somehow impaired his capacity to care about the consequences of his action. The witness conceded that defendant posed a danger to others but estimated that there was a 50 percent chance that the disorder could, over a period of years, be overcome.
The jury deliberated 4 hours before returning a verdict imposing the death penalty. Sentencing was set for December 11, 1981.
On the date set for sentencing, defendant was granted an additional week to prepare a motion for new trial. On December 18, 1981, defense counsel moved for a new trial, additional time to prepare, appointment of experts, and an evidentiary hearing. Defense counsel provided the court with copies of results of polygraph tests administered for the prosecution on Rodney Bartholomew. These results indicated that Rodney had given deceptive answers to questions about his involvement in the laundromat robbery. The results had not been disclosed to defendant until after the sentencing phase had been concluded. The trial court took these matters under advisement and on December 21, 1981, denied all defense motions and sentenced defendant to death. This appeal followed.
We first consider the constitutionality of the procedures devised by the Legislature to facilitate the imposition of the death penalty. Defendant does not...
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