Jeffries, Matter of

Decision Date05 April 1990
Docket NumberNo. 56153-2,56153-2
Citation789 P.2d 731,114 Wn.2d 485
PartiesIn the Matter of the Personal Restraint Petition of Patrick James JEFFRIES, Petitioner.
CourtWashington Supreme Court
Brian Reed Phillips, Everett, Stephanie Ross, Port Roberts, for petitioner

David H. Bruneau, Clallam County Prosecutor, Christopher Melly, Chief Deputy, Port Angeles, for respondent.

DORE, Acting Chief Justice.

This is Patrick James Jeffries' third personal restraint petition challenging his 1983 aggravated first degree murder convictions and death sentence. The court has now considered the petition, the parties' briefs, and the State's motion to dismiss the petition as repetitive. See RAP 16.4(d). We have also reviewed the trial transcript. For the reasons discussed below, we grant the State's motion in part and dismiss the petition in its entirety.

PROCEDURAL BACKGROUND

Petitioner was represented at trial by attorneys Mark Mestel and Walter Sowa. Attorney Brian Phillips, who practices in the same office as Mr. Mestel, represented petitioner on appeal 1 and in one of his two previous personal restraint petitions. 2 Mr. Sowa acted as counsel in the other personal restraint proceeding, which was filed while the direct appeal was still pending. 3 In the present petition, attorneys Phillips and Stephanie Ross raise some 29 issues, most of which were rejected on their merits in one or more of the prior proceedings. (See Appendix for a list of all 29 issues with citations to the portions of our prior opinions addressing the renewed claims.)

A claim rejected on its merits on direct appeal will not be reconsidered in a subsequent personal restraint petition unless the petitioner shows that the ends of justice would be served thereby. In re Taylor, 105 Wash.2d 683, 687, 717 P.2d 755 (1986). Nor may a prisoner bring "more than

one petition for similar relief" absent a showing of "good cause". RAP 16.4(d). A successive petition seeks "similar relief" if it raises matters which have been "previously heard and determined" on the merits or "if there has been an abuse of the writ or motion remedy". In re Haverty, 101 Wash.2d 498, 503, 681 P.2d 835 (1984) (quoting Sanders v. United States, 373 U.S. 1, 15, 17, 83 S.Ct. 1068, 1077, 1078, 10 L.Ed.2d 148 (1963)). We will discuss these concepts in more detail in connection with petitioner's renewed claims and those he contends are new.

RENEWED CLAIMS

Petitioner does not claim to have good cause for renewing the vast majority of the previously rejected issues. He contends only that approximately 7 of these issues either have been "so substantially revised" as to constitute "new" claims or are supported by "new and persuasive authority". Brief of Petitioner at 2. 4 A material intervening change in the law would constitute good cause to permit a successive petition under RAP 16.4(d). In re Taylor, supra 105 Wash.2d at 688, 717 P.2d 755 (quoting Sanders v. United States, supra 373 U.S. at 16-17, 83 S.Ct. at 1077-1078). Simply "revising" a previously rejected legal argument, however, neither creates a "new" claim nor constitutes good cause to reconsider the original claim. As the Supreme Court observed in Sanders, "identical grounds may often be proved by different factual allegations. So also, identical grounds may be supported by different legal arguments, ... or be couched in different language, ... or vary in immaterial respects". (Citations omitted.) Sanders v. United States, supra at 16, 83 S.Ct. at 1077. Thus, for example, "a claim of involuntary confession predicated on alleged psychological coercion does not raise a different 'ground' than does one predicated on physical coercion". Sanders, at 16, 83 S.Ct. at 1077.

Petitioner's "revised" arguments in support of his previously rejected claims similarly do not constitute new or different grounds for relief. Additionally, the case law he cites as "new" is for the most part inapposite.

His renewed challenge to the proportionality of his death sentence, however, does involve intervening developments in our approach to proportionality review. Petitioner's direct appeal was only the second case in which we were required to conduct the proportionality review required by RCW 10.95.130. See State v. Campbell, 103 Wash.2d 1, 25, 691 P.2d 929 (1984), cert. denied, 471 U.S. 1094, 105 S.Ct. 2169, 85 L.Ed.2d 526 (1985) Jeffries I, at 430, 717 P.2d 722. 5 The several capital cases we have decided since that time have given us both a larger database of potentially "similar cases" and an opportunity to refine our proportionality analysis. See State v. Rupe, 108 Wash.2d 734, 767, 743 P.2d 210 (1987), cert. denied, 486 U.S. 1061, 108 S.Ct. 2834, 100 L.Ed.2d 934 (1988); State v. Rice, 110 Wash.2d 577, 627, 757 P.2d 889 (1988), cert. denied, 491 U.S. 910, 109 S.Ct. 3200, 105 L.Ed.2d 707 (1989); State v. Harris, 106 Wash.2d 784, 799, 725 P.2d 975 (1986), cert. denied, 480 U.S. 940, 107 S.Ct. 1592, 94 L.Ed.2d 781 (1987); State v. Mak, 105 Wash.2d 692, 755, 718 P.2d 407, cert. denied, 479 U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 599 (1986). Since application of that analysis in petitioner's case would serve the ends of justice, we will address the merits of this issue. See In re Taylor, supra, 105 Wash.2d at 688, 717 P.2d 755 (issue decided on direct appeal will be addressed in subsequent personal restraint petition if to do so would serve the ends of justice). 6

Petitioner contends that his sentence is disproportionate to the prison terms imposed in numerous aggravated first degree murder cases in which the State did not seek the death penalty. The proportionality of a particular The purpose of proportionality review is not to second-guess evidentiary determinations or value judgments inherent in prosecutors' charging decisions or juries' verdicts in other cases. The purpose is instead to ensure that a death sentence is not "affirmed where death sentences have not generally been imposed in similar cases, nor where it has been 'wantonly and freakishly imposed' ". State v. Rupe, supra 108 Wash.2d at 767, 743 P.2d 210 (quoting State v. Harris, supra 106 Wash.2d at 798, 725 P.2d 975). A proper definition of the universe of "similar cases" is essential to a meaningful determination of these questions and requires a careful examination of the circumstances of the crimes and the defendants' personal characteristics. State v. Rupe, supra 108 Wash.2d at 768-70, 743 P.2d 210; State v. Rice, supra 110 Wash.2d at 625-28, 757 P.2d 889. Simply comparing numbers of victims or other aggravating factors may superficially make two cases appear similar, where in fact there are mitigating circumstances in one case to explain either a jury's verdict not to impose the death penalty or a prosecutor's decision not to seek it. See State v. Mak, supra 105 Wash.2d at 724-25, 718 P.2d 407 (mitigating circumstances shown as to one of two codefendants convicted of the same murders).

defendant's death sentence does not depend upon the State's seeking the death penalty in every case, however, or even in some threshold proportion of cases. The charging decision must be based, in each case, on the prosecutor's assessment of the State's ability to prove there are insufficient mitigating circumstances to merit leniency. RCW 10.95.040(1); State v. Campbell, supra 103 Wash.2d at 25, 691 P.2d 929; State v. Bartholomew, 104 Wash.2d 844, 849, 710 P.2d 196 (1985). A jury's decision to impose a death sentence must similarly be based on the jurors' determination that the State has met its burden of proof. See RCW 10.95.060(4), .080(1); State v. Mak, supra.

One of the cases petitioner and the dissent cite as "similar" provides a good example of this point. State v. Kincaid, 103 Wash.2d 304, 306-11, 692 P.2d 823 (1985). In Kincaid, the State did not seek the death penalty against a With respect to the proven aggravating factors--multiple premeditated murders committed during another felony--Rupe and Rice are both "similar" to the present case. State v. Rupe, supra 108 Wash.2d at 769, 743 P.2d 210; State v. Rice, supra 110 Wash.2d at 626, 757 P.2d 889. Indeed, the similarities between this case and Rupe make the universe of similar cases we defined there equally pertinent here. It is therefore unnecessary to reexamine reported murder cases or the reports filed pursuant to RCW 10.95.130 in order to define the appropriate universe. We also decline to reconsider petitioner's proportionality claims based on assertedly similar new murder cases. Engaging in that inquiry would result in a never ending sentence review.

defendant who killed his wife and sister-in-law. While the number of victims may suggest that Kincaid is a "similar case", there are several pertinent distinguishing features. The killings in Kincaid were committed following an emotional marital break-up rather than in the course of another crime. Additionally, the defendant attempted to kill himself after the murders, and he presented a diminished capacity defense at trial which led the jury to convict him only of second degree murder for one of the killings. Considering all of the pertinent facts, we do not find Kincaid to be "similar" to the present case for purposes of proportionality review. See State v. Rupe, supra 108 Wash.2d at 769, 743 P.2d 210; State v. Rice, supra 110 Wash.2d at 626, 757 P.2d 889 (Kincaid not included in the universe of "similar" multiple murder cases).

Considering the universe of similar cases we considered in Rupe in upholding his death sentence, petitioner's sentence is also neither excessive nor disproportionate. His artistic talent does not distinguish him from Rupe, who was involved in community service projects prior to his crimes. Moreover, unlike petitioner, Rupe relied on a lack of prior criminal history as a mitigating factor. Rupe, at 770, 743 P.2d 210.

In sum, petitioner's death sentence is neither excessive nor disproportionate when compared to the death sentences this court has since...

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