Rupe, In re
| Decision Date | 18 October 1990 |
| Docket Number | No. 55615-6,55615-6 |
| Parties | , 59 USLW 2298 In re Personal Restraint Petition of Mitchell E. RUPE, Petitioner. En Banc |
| Court | Washington Supreme Court |
Patrick D. Sutherland, Thurston County Prosecutor, and Gary R. Tabor, Chief Crim. Deputy County Prosecutor, Olympia, for respondent.
In this capital murder case personal restraint petitioner Mitchell E. Rupe, who was sentenced to death, argues that a jury instruction directing the jury not to permit sympathy to influence it during sentencing deliberations was erroneous and requires a new penalty phase trial. We deny the petition.
Petitioner was convicted on two counts of first degree aggravated murder in the shooting deaths of two Olympia, Washington, bank tellers during the course of an armed robbery, and two counts of first degree robbery.
In June 1984 this court handed down the opinion in State v. Rupe, 101 Wash.2d 664, 683 P.2d 571 (1984). 1 We affirmed petitioner's convictions, but reversed the sentence of death on the ground that evidence of petitioner's gun collection was erroneously admitted in the penalty phase of the trial. On remand for a second sentencing proceeding, petitioner was again sentenced to death. In response to the statutorily mandated question which the sentencing jury must answer under this state's capital sentencing statutes, the jury unanimously determined that there existed no sufficient mitigating circumstances to merit leniency. RCW 10.95.060(4). Petitioner's second sentence of death was upheld by this court in State v. Rupe, 108 Wash.2d 734, 743 P.2d 210 (1987), cert. denied, 486 U.S. 1061, 108 S.Ct. 2834, 100 L.Ed.2d 934 (1988). 2
Thereafter, petitioner filed a personal restraint petition with this court. In his brief in support of his personal restraint petition, petitioner raised a number of issues In an order filed March 30, 1990, we denied the petition as to all issues except the propriety of giving a no-sympathy instruction to the jury. As to that issue, the court set oral argument, and directed the parties to provide additional briefing limited to the no-sympathy instruction issue. The court also directed the parties to discuss the United States Supreme Court's opinion in Saffle v. Parks, --- U.S. ----, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990). Following further briefing and oral argument, we now address petitioner's remaining issue.
relating to the second sentencing procedure. He argued that defense counsel never opened the door to the deputy prosecutor's rebuttal cross-examination regarding the possibility of commutation, and that admission of evidence regarding the possibility of commutation constitutes reversible error. 3 Petitioner also argued that defense counsel was ineffective in that he opened the door to rebuttal evidence regarding the possibility of commutation; counsel was ineffective in that he submitted an instruction directing the jury to disregard sympathy and in not objecting to the giving of a no-sympathy instruction; counsel was ineffective in not introducing mitigating psychological[798 P.2d 782] testimony at the sentencing proceeding; and counsel was ineffective in not submitting a jury instruction informing the jury that there is a presumption that a defendant merits leniency. Petitioner additionally argued that Washington's death penalty statute creates a mandatory presumption of death
Petitioner's challenge is based upon the trial court's giving the following instruction to the jury:
You are officers of the Court and must act impartially and with an earnest desire to determine and declare the proper verdict. Throughout your deliberations you will permit neither sympathy nor prejudice to influence you.
Instruction 1, Clerk's Papers, at 397 (). Substantially the same instruction was given orally at the beginning of trial. Verbatim Report of Proceedings, at 2350.
Petitioner maintains that the "anti-sympathy" language of the introductory jury instruction conflicted with the jury instructions defining the role of mitigating evidence. He argues that the decision in Saffle v. Parks, supra, does not decide this issue or, if it is applicable, it invalidates the no-sympathy instruction given here. He also relies upon what he terms "clear Washington precedent."
Petitioner claims that the decision in Saffle v. Parks, supra, does not decide the issue in this case. To understand the impact of that opinion, we begin with the premise that the State cannot bar the defense from presenting relevant mitigating evidence during the penalty phase of a capital trial, and the jury may not be limited in its consideration of such evidence. Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978); Eddings v. Oklahoma, 455 U.S. 104, 113-15, 102 S.Ct. 869, 876-77, 71 L.Ed.2d 1 (1982). The sentencer may consider "any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Lockett, 438 U.S. at 604, 98 S.Ct. at 2964. The holdings of Lockett and Eddings are founded on the Eighth and Fourteenth Amendments' requirement of individualized sentencing in capital cases. Lockett, 438 U.S. at 605, 98 S.Ct. at 2965.
In California v. Brown, 479 U.S. 538, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987), the Court reviewed a decision of the California State Supreme Court holding that a no-sympathy instruction violated the Eighth and Fourteenth Amendments. The instruction at issue informed the jurors that they " 'must not be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling' during the penalty phase of a capital murder trial".
California v. Brown, supra, at 539, 107 S.Ct. at 838. The California court reasoned that the instruction diverted the jury from its constitutional duty to consider any sympathetic aspect of the defendant's character or record whether or not related to the offense for which the defendant was on trial. People v. Brown, 40 Cal.3d 512, 537, 726 P.2d 516, 230 Cal.Rptr. 834 (1985)
The United States Supreme Court reversed, holding that the instruction was not violative of the federal constitution. The Court reasoned that a reasonable juror focusing on the phrase "mere sympathy" would be likely to "interpret the phrase as an admonition to ignore emotional responses that are not rooted in the aggravating and mitigating evidence introduced during the penalty phase." California v. Brown, supra, 479 U.S. at 542, 107 S.Ct. at 840 (hereafter Brown ). The Court noted that the instruction was given at the end of the penalty phase, after defendant had produced 13 witnesses in his favor, and said that rather than interpreting the instruction as defendant urged and the California court did, it thought that
a reasonable juror would reject that interpretation, and instead understand the instruction not to rely on "mere sympathy" as a directive to ignore only the sort of sympathy that would be totally divorced from the evidence adduced during the penalty phase.
Brown, at 542, 107 S.Ct. at 840. By prohibiting the jury from consideration of factors not presented at trial and irrelevant to the issues, the Court said, the instruction served the useful purpose of cautioning the jury not to rely on extraneous emotional factors which would be more likely to turn the jury against a capital defendant than for him. Brown, at 543, 107 S.Ct. at 840. Also, the instruction "fosters the Eighth Amendment's 'need for reliability in the determination that death is the appropriate punishment in a specific case,' " and it helps ensure the "availability of meaningful judicial review" based on record evidence--another safeguard improving the reliability of the sentencing process. Brown, at 543, 107 S.Ct. at 840.
Justice O'Connor concurred, writing "the sentence imposed at the penalty stage should reflect a reasoned moral response to the defendant's background, character The year after Brown was handed down, the Tenth Circuit addressed a petition for a writ of habeas corpus, which, among other things, challenged the following instruction given to the jury during the penalty phase of a capital trial: "You must avoid any influence of sympathy, sentiment, passion, prejudice or other arbitrary factor when imposing sentence." Parks v. Brown, 860 F.2d 1545, 1548 (10th Cir.1988), cert. granted, --- U.S. ----, 109 S.Ct. 1930, 104 L.Ed.2d 402 (1989). The Tenth Circuit held the instruction was unconstitutional, and distinguished Brown on the basis that the instruction there concerned "mere" sympathy, which, the Tenth Circuit said, was crucial to the Court's decision in Brown, while the instruction before it concerned "any ... sympathy." The court reasoned that the "absolute" anti-sympathy instruction unconstitutionally directed the jury to ignore sympathy which was based on mitigating evidence. The court further reasoned that such an instruction creates a "danger that [defendant's] counsel's plea for mercy and compassion will fall on deaf ears." Parks v. Brown, supra, at 1556.
and crime rather than mere sympathy or emotion." Brown, at 545, 107 S.Ct. at 841 (O'Connor, J., concurring).
The United States Supreme Court granted certiorari, and reversed. Saffle v. Parks, --- U.S. ----, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990) (hereafter Parks ). The Court concluded the rule which petitioner sought would be a new rule which, under its recent opinions, would not apply retroactively on collateral review because it did not fit within either of two exceptions articulated by the Court. See Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989); Penry v. Lynaugh, --- U.S. ----, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989).
In reaching this conclusion, the Court necessarily examined the substantive...
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