State v. Bartholomew
| Citation | 710 P.2d 196,104 Wn.2d 844 |
| Decision Date | 12 December 1985 |
| Docket Number | No. 51357-1,51357-1 |
| Parties | The STATE of Washington, Petitioner, v. Dwayne Earl BARTHOLOMEW, Petitioner, Pierce County Superior Court, Respondent. |
| Court | United States State Supreme Court of Washington |
Timothy K. Ford, Seattle, for petitioner Bartholomew.
Shawn A. Flood, Kane, Vandeberg, Hartinger & Walker, P.S., G. Perrin Walker, Tacoma, for respondent.
In December 1981, a jury convicted Dwayne Bartholomew of aggravated first degree murder and in a separate hearing the jury found no mitigating circumstances and sentenced him to death. The following November, this court affirmed the murder conviction, but invalidated the death sentence because of the unconstitutional admission of evidence, during the separate sentencing phase, regarding Bartholomew's previous criminal activity. State v. Bartholomew, 98 Wash.2d 173, 654 P.2d 1170 (1982) (Bartholomew I).
The United States Supreme Court vacated this judgment in Bartholomew I, and remanded this case in light of Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 In deference to the view of the majority in our prior decision on the consequence of a reversal of the sentencing phase, this case is remanded to the trial court for a new sentencing hearing to consider anew whether to impose the death sentence.
(1983). Washington v. Bartholomew, 463 U.S. 1203, 103 S.Ct. 3530, 77 L.Ed.2d 1383 (1983). We affirmed our previous holding in Bartholomew I alternatively on state and federal constitutional grounds and remanded to the Pierce County trial court with the following statement
State v. Bartholomew, 101 Wash.2d 631, 648, 683 P.2d 1079 (1984) (Bartholomew II)
On remand the Pierce County prosecutor decided not to seek the death penalty using a new jury sentencing phase. The prosecutor, instead, decided to have the trial court sentence the defendant to life imprisonment without parole. The prosecutor asserted that this court's holding in Bartholomew I and Bartholomew II deprived him of the evidence needed to rebut the mitigating circumstances, and therefore the defendant should receive the more lenient sentence.
The trial judge questioned the right of the prosecutor to decline to seek the death penalty at this time in the proceedings. The judge appointed special counsel to argue that the prosecutor lacked discretion to decide not to seek the death penalty. After argument, the judge denied joint motions by the prosecution and defense to enter a sentence of life imprisonment without parole. The trial court cited our mandate in Bartholomew II. The parties petitioned this court to grant recall and clarifications of the mandate or discretionary review. We denied this motion by an order dated December 4, 1984.
Further proceedings were held before the Pierce County trial court at which the prosecution, defense, and special counsel argued as to whether the prosecution should proceed with the sentencing hearing. The trial court determined that a sentencing hearing must take place. The parties again petitioned this court for discretionary review,
which was granted.
The issue now before this court is whether the prosecuting attorney, after the penalty phase of an aggravated murder has been remanded to the trial court for a new jury deliberation solely on the death penalty issue, has the authority to commute defendant's sentence to life without the possibility of parole and bypass the jury and penalty phase of the trial.
There are two provisions in the aggravated first degree murder statute that directly answer the question posed to us by this appeal. First, RCW 10.95.050(1) states that
If a defendant is adjudicated guilty of aggravated first degree murder, ... by verdict of a jury, ... a special sentencing proceeding shall be held if a notice of special sentencing proceeding was filed and served as provided by RCW 10.95.040. No sort of plea, admission, or agreement may abrogate the requirement that a special sentencing proceeding be held.
(Italics ours.) Here, both requirements were met: the prosecutor properly had filed a notice that he would seek the death penalty and a jury found the defendant guilty of aggravated first degree murder. In such instances the statute mandates that a special sentencing proceeding take place and it gives the prosecutor neither the power nor the discretion to short circuit the penalty phase of the proceeding. In fact, the statute specifically precludes any agreement on the part of the prosecution and defense which would "abrogate the requirement that a special sentencing proceeding be held." RCW 10.95.050(1). The jury is given the exclusive right to determine whether the defendant will live or die based on mitigating circumstances.
The second provision of the statute which is dispositive as to this issue is RCW 10.95.050(4) which provides in part:
if a retrial of the special sentencing proceeding is necessary for any reason including but not limited to a mistrial (Italics ours.) This section clearly shows that the Legislature anticipated the issue presented by this case and provided a remedy for it. The statute is clear, unambiguous, and requires that the trial court impanel a jury to decide the proper penalty after a remand on the death penalty question. The prosecutor has no discretion to determine unilaterally that the lesser penalty be imposed.
in a previous special sentencing proceeding or as a consequence of a remand from an appellate court, the trial court shall impanel a jury of twelve persons plus whatever alternate jurors the trial court deems necessary.
There is no question but that the above cited sections of the statute are mandatory, and that the jury must be impaneled to decide the death penalty upon remand. The applicable statute uses the words "the trial court shall impanel a jury". The general rule is that the word "shall" is presumptively imperative and operates to create a duty rather than conferring discretion. Crown Cascade, Inc. v. O'Neal, 100 Wash.2d 256, 668 P.2d 585 (1983). It is only where a contrary legislative intent is shown that "shall" will be interpreted as being directory instead of mandatory. Northwest Natural Gas Co. v. Clark Cy., 98 Wash.2d 739, 658 P.2d 669 (1983). Here, there is nothing in the statute which indicates that the Legislature did not intend to make the holding of the special sentencing proceeding mandatory when the two conditions were satisfied. Indeed, the Legislature used the word "shall" 67 times in RCW 10.95 while using "may" 15 times. This indicates that the Legislature intended the two words to have different meanings: "may" being directory while "shall" being mandatory. See State v. Huntzinger, 92 Wash.2d 128, 594 P.2d 917 (1979).
To allow the prosecution this discretion in a death penalty case absent specific statutory guidance could also give an unconstitutional delegation of authority to the prosecutor. See State v. Martin, 94 Wash.2d 1, 614 P.2d 164 (1980). The prosecutor does have discretion to decide whether to seek the death penalty at the charging phase of a case pursuant In contrast, if the prosecutor can decide after trial whether to seek the death penalty, the prosecutor has unfettered discretion after a case is remanded for error in the penalty stage. No statute exists to give him any guidance whatsoever in administering such power. Consequently, the prosecution would have the power to refuse to take the case to the jury even though the defendant has already been convicted of aggravated first degree murder. Since no guidelines would control the prosecution's decision, it is possible under a factual situation that two defendants, who are convicted of aggravated first degree murder and who have their cases remanded on appeal due to error in the sentencing phase, can, on remand, be subject to different dispositions of their cases. The prosecutor, quite arbitrarily, can decide to take one case to a new sentencing jury while refusing to do the same with the other. Consequently, two defendants, in identical situations, may have their penalties decided differently because the prosecutor has unbridled discretion as to how each will be treated. This clearly violates the Fourteenth Amendment's equal protection clause. State v. Zornes, 78 Wash.2d 9, 475 P.2d 109 (1970).
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