State v. Bartholomew

• Citation: 683 P.2d 1079,101 Wn.2d 631
• Decision Date: 24 May 1984
• Docket Number: No. 48346-9,48346-9
• Parties: The STATE of Washington, Respondent, v. Dwayne Earl BARTHOLOMEW, Appellant.
• Court: United States State Supreme Court of Washington

Page 631

101 Wn.2d 631

683 P.2d 1079

The STATE of Washington, Respondent, v. Dwayne Earl BARTHOLOMEW, Appellant.

No. 48346-9.

Supreme Court of Washington,

En Banc.

May 24, 1984.

Timothy K. Ford, Seattle, Dept. of Assigned Counsel, Douglas Tufts, Tacoma, for appellant.

William Griffies, Pierce County Prosecutor, Christine Quinn-Brintnall, Deputy Prosecutor, Tacoma, for respondent.

PEARSON, Justice.

Defendant Dwayne Earl Bartholomew was convicted of aggravated first degree murder and received a sentence of death in December 1981. On automatic review, pursuant to RCW 10.95.100, we affirmed the conviction, but reversed his sentence when we found portions of the capital punishment statute in violation of the Eighth and Fourteenth Amendments. The United States Supreme Court granted a writ of certiorari, vacated our judgment, --- U.S. ----, 103 S.Ct. 3530, 77 L.Ed.2d 1383, found in State v. Bartholomew, 98 Wash.2d 173, 654 P.2d 1170 (1982), defendant's cert. denied, --- U.S. ----, 103 S.Ct. 3548, 77 L.Ed.2d 1395 (1983), and remanded the case for reconsideration in light of Zant v. Stephens, --- U.S. ----, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). The facts in this case are adequately set forth in State v. Bartholomew, 98 Wash.2d at 177-80, 654 P.2d 1170.

I

A.

We first consider whether provisions of the capital punishment statute, RCW 10.95, remain invalid under the United States Constitution after reconsideration in light of Zant v. Stephens. Our prior decision modified the death penalty statute in three significant ways.

First, the portion of RCW 10.95.060(3) that authorizes the admission of evidence of a defendant's prior criminal activity (other than convictions) is inconsistent with the Eighth Amendment standards we have articulated. Therefore, we invalidate the provision authorizing the admission of "evidence of the defendant's previous criminal activity regardless of whether the defendant has been charged or convicted as a result of such activity." That portion of the statute may be severed without affecting the validity of the remainder of the statute. RCW 10.95.900.

Second, the remaining provisions in RCW 10.95.060 and the provisions of RCW 10.95.070 must be construed subject to the Eighth Amendment strictures we have identified in this opinion. Specifically, the liberal authority provided by RCW 10.95.060(3) to receive "any relevant evidence" must be limited to mitigating evidence only. Similarly, the jury's liberal mandate under RCW 10.95.070 to consider "any relevant factors" shall be limited to mitigating factors only. The admission of evidence of aggravating factors and consideration by the jury of aggravating factors must be restricted to maintain the constitutionally required channeled discretion. Specifically, evidence of nonstatutory aggravating factors must be limited to defendant's criminal record and such evidence of additional nonstatutory aggravating factors as may be admitted by the court pursuant to the balancing test set forth above.

Finally, the provision in RCW 10.95.060(2) that the prosecution shall be allowed to make an opening statement and shall first present evidence must be limited in accordance with this opinion. This means that in most cases the only evidence with which the prosecution may open is defendant's criminal record. In the event that the sentencing jury is not the jury which convicted defendant of aggravated first degree murder, the prosecution may in addition present evidence of the facts and circumstances of the murder, as provided by the second paragraph of RCW 10.95.060(3).

98 Wash.2d at 198-99, 654 P.2d 1170.

We based this prior decision on our interpretation of the Supreme Court's decisions interpreting the Eighth and Fourteenth Amendments, and establishing procedural requirements in capital punishment cases. Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). The question before us, then, is whether Zant v. Stephens mandates a different result than our prior decision in this case. We hold that it does not.

In Zant v. Stephens, a Georgia state court found the defendant guilty of murder and imposed the death penalty. Under the Georgia capital punishment statute, a jury must find that at least one statutory aggravating circumstance has been proved beyond a reasonable doubt before it can sentence someone to death. 103 S.Ct. at 2737. At the sentencing phase of the trial, the jury designated in writing the three statutory aggravating circumstances it found. 103 S.Ct. at 2737-38. One of the aggravating circumstances the jury found was that the defendant had " 'a substantial history of serious assaultive criminal convictions' ". 103 S.Ct. at 2738. While the defendant's appeal was pending before the Georgia Supreme Court, that court held in another case that the statutory aggravating circumstance--a substantial history of serious assaultive criminal convictions--was unconstitutionally vague. Arnold v. State, 236 Ga. 534, 539-42, 224 S.E.2d 386 (1976). In the defendant's appeal, the Georgia Supreme Court considered whether this finding impaired the defendant's death sentence. The Georgia court concluded that the two other aggravating circumstances found by the jury adequately supported the sentence. The question before the United States Supreme Court was whether the invalidation of one of the multiple statutory aggravating circumstances found by a jury in imposing the death penalty requires that the sentence must be invalidated under the Eighth Amendment.

In its decision affirming the Georgia court, the Supreme Court clarified the constitutional requirements that statutory aggravating factors must meet:

[A]n aggravating circumstance must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.

(Footnote omitted.) 103 S.Ct. at 2742-43. Aggravating factors serve such a narrowing function under the Washington statutory scheme. The Washington capital punishment statute differs from the Georgia statute considered in Zant v. Stephens in that the Washington scheme requires the consideration of aggravating factors at the guilt determination phase, rather than at the sentencing phase as required by the Georgia statute. Under the Washington statute, of that class of persons guilty of first degree murder, the jury may consider the death penalty only if one of the aggravating circumstances set forth in RCW 10.95.020 is also found to exist. This genuinely narrows the class of persons subject to the death penalty as constitutionally required.

The Court in Zant v. Stephens went on to indicate that a jury's consideration of nonstatutory aggravating factors will not render a death sentence unconstitutional:

[S]tatutory aggravating circumstances play a constitutionally necessary function ... But the Constitution does not require the jury to ignore other possible [nonstatutory] aggravating factors in the process of selecting, from among that class, those defendants who will actually be sentenced to death.

(Footnote omitted.) 103 S.Ct. at 2743. This statement is of some significance to our prior decision. Prior to Zant v. Stephens and at the time of our prior decision, constitutional limits placed on the admission of aggravating factors in capital cases were an open question. In our prior decision we noted that Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), and other recent Supreme Court decisions require the admission of nearly all mitigating information proffered by a defendant at a capital sentencing hearing. 98 Wash.2d at 194-95, 654 P.2d 1170. We also noted that "[w]hile such liberal reception of mitigating information is mandated by Lockett v. Ohio, et al, the Court has not yet considered specifically whether the same principles apply to aggravating factors." 98 Wash.2d at 194-95, 654 P.2d 1170.

In a limited way, Zant v. Stephens answers the question as to limits the constitution places on the prosecution's presentation of nonstatutory aggravating factors at the sentencing phase of a capital case. According to the Supreme Court, the sentencing jury may consider nonstatutory aggravating factors. However, the court in Zant v. Stephens does not say that nonstatutory aggravating factors should have the same liberal reception as mitigating information proffered by the defendant. There remain several federal and state constitutional limits on the admission of evidence of such aggravating factors. These federal and state constitutional requirements mandate the same results reached in our prior decision.

The first of these federal constitutional standards which support our prior decision is that evidence prejudicial to the defendant must not be admitted at the sentencing phase. In its recent decisions in Zant v. Stephens and California v. Ramos, --- U.S. ----, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983), the Court acknowledged this "prejudice" standard by noting the following quotation from Gregg v. Georgia, 428 U.S. 153, 203-04, 96 S.Ct. 2909, 2939, 49 L.Ed.2d 859 (1976):

We think that the Georgia court wisely has chosen not to impose unnecessary restrictions on the evidence that can be offered at such a hearing and to approve open and far-ranging argument.... So long as the evidence introduced and the arguments made at the presentence hearing do not prejudice a defendant, it is preferable not to impose restrictions. We think it desirable for the jury to have as much information before it as possible when it makes the sentencing decision.

(Italics ours.) See Zant v. Stephens, 103 S.Ct. at 2748; California v. Ramos, 103 S.Ct. at 3457 n. 23.

Although the Court has cited this quotation from...