Harris, Matter of

• Decision Date: 10 November 1988
• Docket Number: No. 53776-3,53776-3
• Citation: 763 P.2d 823,111 Wn.2d 691
• Parties: In the Matter of the Personal Restraint Petition of Benjamin J. HARRIS III, Petitioner.
• Court: Washington Supreme Court

Page 691

111 Wn.2d 691

763 P.2d 823

In the Matter of the Personal Restraint Petition of Benjamin J. HARRIS III, Petitioner.

No. 53776-3.

Supreme Court of Washington En Banc.

Nov. 10, 1988.

Brown & Ressler, Allen M. Ressler, Seattle, for petitioner.

John Ladenburg, Pierce County Prosecutor, Chris Quinn-Brintnall, Sr. Deputy, Tacoma, for respondent.

DOLLIVER, Justice.

In October of 1986, this court affirmed Benjamin Harris' aggravated first degree murder conviction and death sentence. State v. Harris, 106 Wash.2d 784, 725 P.2d 975 (1986). In the present 326-page personal restraint petition, Mr. Harris challenges his death sentence and the jury's finding as to the aggravating factor. He frames some 36 issues, many of which are facial or as-applied challenges to this state's death penalty statute. (See Appendix.)

This court considered each of these issues en banc at an administrative conference. See RAP 16.11(b) and (c). The court has also reviewed the trial transcript. Based on the arguments presented and the record before us, we find no reason to reconsider the issues raised and decided on direct appeal (see In re Taylor, 105 Wash.2d 683, 687, 717 P.2d 755 (1986)) and no basis on which to grant relief on any of the issues not previously raised. See In re Jeffries, 110 Wash.2d 326, 752 P.2d 1338 (1988). Two issues warrant discussion, however.

First, petitioner challenges the death penalty charging policy of the Pierce County Prosecuting Attorney's Office. The record indicates that the prosecutor files a notice of intent to seek the death penalty in every aggravated first degree murder case unless the defendant or his attorney brings evidence of mitigating circumstances to the State's attention. Petitioner would liken this policy to the one we found invalid in State v. Pettitt, 93 Wash.2d 288, 295, 609 P.2d 1364 (1980); see also State v. Rowe, 93 Wash.2d 277, 609 P.2d 1348 (1980); State v. Gilcrist, 91 Wash.2d 603, 590 P.2d 809 (1979); State v. Lee, 87 Wash.2d 932, 558 P.2d 236 (1976).

The prosecutor in Pettitt had an automatic policy of filing habitual criminal charges against all defendants with three or more prior felonies. He testified he "could imagine no situation which would provide for an exception to the mandatory policy." State v. Pettitt, supra, 93 Wash.2d at 296, 609 P.2d 1364. The Pierce County Prosecuting Attorney, by contrast, will consider any mitigating factors the defendant brings to his attention. The availability of this "escape valve" makes the Pierce County policy more akin to the habitual criminal charging policy we upheld in Rowe than to the inflexible, absolute policy challenged in Pettitt. In Rowe, one of the prosecutor's written charging standards provided that a habitual criminal charge would be made "in all cases" in which the defendant was charged with a "high impact" crime and had two valid prior convictions. See State v. Rowe, supra, 93 Wash.2d at 281, 609 P.2d 1348. The standards also contained a section which allowed for exceptions to all charging criteria, however, where "special factors" required leniency. Id., at 282, 609 P.2d 1348. This kind of "individualized tempering" of an otherwise absolute charging policy is also present here.

There is, moreover, a significant distinction between the death penalty charging decision at issue here and the decision whether to file habitual criminal charges. Pertinent factors the prosecutor may consider in making the latter decision include the nature of the defendant's present and prior convictions, the amount of time between them, and the State's ability to prove the existence and validity of the prior convictions. State v. Lee, supra, 87 Wash.2d [763 P.2d 825] at 935, 558 P.2d 236; State v. Nixon, 10 Wash.App. 355, 356-57, 517 P.2d 212 (1973). These are, in the main, matters of public record to which the prosecutor has ready access.

A prosecutor who charges a defendant with aggravated first degree murder, by contrast, must make the more subjective determination of whether there is "reason to believe that there are not sufficient mitigating circumstances to merit leniency." RCW 10.95.040; see also State v. Campbell, 103 Wash.2d 1, 25, 691 P.2d 929 (1984). Although some statutory mitigating factors involve objective facts the prosecutor can readily ascertain (see, e.g., RCW 10.95.070(1) (lack of criminal history)), most are in the nature of explanations or excuses related to the crime itself. RCW 10.95.070(2) (extreme mental disturbance), (3) (consent of victim), (4) (minor participation as an accomplice), (5) (duress), and (6) (mentally impaired capacity). As with criminal defenses generally, these tend to be matters about which the defendant and his attorney will have more knowledge than the State. Additionally, although the State will at trial bear the burden of proving there are insufficient mitigating circumstances to merit leniency, State v. Rupe, 101 Wash.2d 664, 701, 683 P.2d 571 (1984), it cannot attempt to rebut on any particular point unless the defendant first presents evidence on it. State v. Bartholomew, 101 Wash.2d 631, 642-43, 683 P.2d 1079 (1984). The Pierce County charging policy makes sense in light of this evidentiary principle.

Nothing in this court's decision in Pettitt condemns a charging policy which allows for exceptions and is based on applicable statutory and evidentiary criteria. See State v. Rowe, supra, 93 Wash.2d at 282-87, 609 P.2d 1348; see also 2 W. LaFave & J. Israel, Criminal Procedure § 13.2(d), p. 176 (1984) (discussing Pettitt and Rowe ).

Petitioner also claims the prosecutor, by filing a death notice, penalized him for exercising his right to remain silent. See Wayte v. United States, 470 U.S. 598, 608, 105 S.Ct. 1524, 1531, 84 L.Ed.2d 547 (1985) (decision to prosecute cannot be based on defendant's exercise of constitutionally protected rights). We disagree. In terms of its effect on a defendant's privilege against self-incrimination, Pierce County's policy of relying on the defendant for information regarding mitigating factors is quite similar in effect to CrR 4.7(b). Under this rule, the trial court may order the defendant to inform the prosecutor of the general nature of the defense and to specify whether certain defenses or issues will be raised. CrR 4.7(b)(2)(xii)-(xiv). Where, as in this jurisdiction, the defendant has a reciprocal right of discovery, requiring him to reveal these matters prior to trial does not violate his privilege against self-incrimination. Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970); see also Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973) (notice of alibi rule violates due process if defendant has no reciprocal discovery rights). As the Supreme Court observed in upholding Florida's "notice of alibi" rule:

[T]he pressures that bear on [the defendant's] pretrial decision are of the same nature as those that would induce him to call alibi witnesses at the trial: the force of historical fact beyond both his and the State's control and the strength of the State's case built on these facts. Response to that kind of pressure by offering evidence or testimony is not compelled self-incrimination transgressing the Fifth and Fourteenth Amendments.

Williams v. Florida, supra, 399 U.S. at 85, 90 S.Ct. at 1898. Although the decision whether to seek the death penalty occurs earlier in the process than does discovery, this fact does not make the required disclosures any the more "compelled." See also Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978) (prosecutorial threat to file additional charges unless defendant pleads guilty does not violate privilege against self-incrimination).

For all of these reasons, petitioner has not shown that the charging policy infringed upon any of his constitutional rights.

The second claim meriting discussion involves the admission of petitioner's 1969 manslaughter conviction in the penalty phase of trial. Prior convictions are admissible as nonstatutory aggravating factors. State v. Bartholomew, 101 Wash.2d 631, 640-41, 683 P.2d 1079 (1984). Petitioner claims, however, that the State must prove every aspect of the constitutional validity of any prior guilty plea, including specifically that (1) the defendant was aware of all of his constitutional rights, (2) he received "real notice" of the charge, and (3) the plea court obtained an adequate factual basis for the plea. Petition, at 21-31. Petitioner would impose this burden regardless of whether the defendant challenges the plea either during the capital sentencing hearing or on direct appeal, and, apparently, even if he fails at any time to assert ignorance of his rights. Relying on such an absolute proof requirement, petitioner characterizes his 1969 conviction as "facially unconstitutional on the record." Petition, at 24.

In rejecting this claim, we emphasize three points. First, the prior conviction was not an "element" the State had to prove in order to impose the death penalty, but rather one piece of evidence in the State's entire penalty phase case. See RCW 10.95.020; State v. Bartholomew, supra. Petitioner's challenge thus is not to the sufficiency of the State's case, but to the admissibility of a particular item of evidence. The analogies both parties make to habitual criminal proceedings are therefore imprecise at best. See State v. Hennings, 100 Wash.2d 379, 670 P.2d 256 (1983) (challenge to validity of prior convictions in habitual criminal proceeding is challenge to sufficiency of State's evidence and thus raises double jeopardy concerns).

Second, petitioner's prior conviction was counseled. This is not, therefore, a case like Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), where the prior conviction used to enhance the defendant's sentence was presumptively void under the Sixth Amendment. See Marshall v. Lonberger, 459 U.S. 422, 437, 103 S.Ct. 843, 852, 74 L.Ed.2d 646...