State v. Clark, 63636-2

• Decision Date: 08 August 1996
• Docket Number: No. 63636-2,63636-2
• Citation: 920 P.2d 187,129 Wn.2d 805
• Court: Washington Supreme Court
• Parties: STATE of Washington, Petitioner, v. Richard M. CLARK, Respondent.

Page 805

129 Wn.2d 805

920 P.2d 187

STATE of Washington, Petitioner, v. Richard M. CLARK, Respondent.

No. 63636-2.

Supreme Court of Washington,

En Banc.

Argued June 26, 1996.

Decided Aug. 8, 1996.

Jim Krider, Snohomish County Prosecutor, S. Aaron Fine, Deputy, Everett, for petitioner.

Snohomish County Public Defender, William Jaquette, III, Everett, for respondent.

TALMADGE, Justice.

After deciding to seek the death penalty for Richard M. Clark, the State did not serve the special notice on Clark or his counsel personally. Instead, relying on a long-standing agreement between the Snohomish County Prosecutor's Office and the Public Defender Office for daily pickup of papers, the State left the notice in a designated box, and a Public Defender staff person picked it up, stamped it "received," and delivered it to the defendant's attorney. Although the notice was filed and received by defense counsel within the statutory time period, the Snohomish County Superior Court found service was not timely under RCW 10.95.040 and barred the possibility of a death sentence in this case.

We hold the notice was timely filed and served for purposes of RCW 10.95.040(2) when it was served on the Public Defender Office in accordance with the requirements of CR 5. We reverse the order of the Snohomish County Superior Court and remand the case for further proceedings pursuant to RCW 10.95.

ISSUE

Was the notice of special sentencing proceeding properly served under RCW 10.95.040?

FACTS

Seven-year-old Roxanne Doll disappeared the night of March 31, 1995. Several days later, her body was found. Defendant Clark was a friend of Roxanne's family. Relying on physical evidence and information provided by his relatives, the police arrested Clark. On April 14, 1995, he was charged with first degree kidnapping, rape, and aggravated murder in connection with the crime. ¹

Clark was arraigned on April 17, 1995. Bill Jacquette, the director of the Snohomish County Public Defender Association, appeared on Clark's behalf. At Jacquette's request, the trial court extended the time for filing and service of the death penalty notice until 5:00 p.m. on September 22, 1995.

On September 19, 1995, a deputy prosecutor phoned Jacquette and advised him the death penalty notice would be filed. It is undisputed the notice was timely filed in the Snohomish County Superior Court on that date. That same day, pursuant to an agreement between the Public Defender Office and the Prosecutor's Office, the notice was left in the Public Defender Office box in the Prosecutor's Office with a cover memorandum. The death penalty notice and memorandum were picked up by a Public Defender The trial court described the arrangement between the offices as follows:

                Office staff person and carried to that office where they were stamped "Received Sep 20 1995 Sno.  Co. Public Defender."   It is not disputed the notice was received by counsel for Clark within the statutory period
                

VIII.

The offices of the prosecuting attorney and the public defender have an agreement for transferring correspondence and other papers. Twice each day a non-attorney staff person of the public defender's office delivers its correspondence and other papers for the prosecuting attorney to the prosecutor's office and retrieves the correspondence and other papers from the prosecuting attorney for the public defender from a box within the prosecutor's office.

IX.

When a public defender document is to be filed, the public defender [clerk leaves a stamped copy at] the prosecutor's office, files the original with the [court] clerk and, and returns the other stamped copy to the public defender's office.

X.

Copies of ordinary documents filed by the prosecuting attorney are left in the box in the prosecutor's office along with other correspondence and papers. Public defender procedures call for its staff person to pick up all such papers, bring them back to the public defender's office, stamp them "Received," and distribute them as appropriate. For papers directed to a particular attorney, the papers are placed in the box for that attorney. There are no provisions for returning copies of papers ... marked "Received." However, for some papers ... the deputy prosecuting attorney requires ... a receipt verification.

Clerk's Papers at 24-26.

The Public Defender staff picked up and dropped off papers at the Prosecutor's office, as part of the courthouse The State sought personally to serve the notice on Jacquette on September 29, 1995. Clark thereafter moved to strike the notice. The trial court concluded the notice was not timely served under the statute because personal service was necessary, and struck the notice, directing the case to "proceed without the possibility of the death penalty." Clerk's Papers at 30. We granted the State's motion for discretionary review. RAP 2.3(b); RAP 4.2(a).

                run, each day at 9:00 a.m. and 3:00 p.m.  The staff were known to the Prosecutor's office.  The box for Public Defender papers was clearly designated,[920 P.2d 189]  and located in an area of the Prosecutor's office not open to the public.  The two offices had relied on this system for service of all motions and exchange of all correspondence for many years with no reported problems.  One Public Defender staff person noted:  "it's so routine."  Id. at 118.   Clark admitted the system was used for motions, correspondence, and all other papers served on Public Defender attorneys, except informations or summonses.  The two offices never adopted a special protocol for service of papers in cases involving the death penalty
                

ANALYSIS

RCW 10.95.040(2) provides a death penalty notice must "be filed and served on the defendant or the defendant's attorney" within 30 days of arraignment, unless the court, for good cause, extends or re-opens the time for filing and service. RCW 10.95.040(2). If the notice "is not filed and served as provided in this section, the prosecuting attorney may not request the death penalty." RCW 10.95.040(3).

RCW 10.95.040 does not define service, or describe the method of service. In State v. Luvene, 127 Wash.2d 690, 717-19, 903 P.2d 960 (1995), and State v. Dearbone, 125 Wash.2d 173, 883 P.2d 303 (1994), we addressed RCW 10.95.040(2)'s timeliness requirement, but did not address the meaning of service under the statute. In Dearbone and Luvene, we adopted the view that the timeliness requirements for filing and service of the notice must be strictly met.

This case does not present a constitutional issue as the notice requirement is statutory only. Neither Dearbone nor Luvene renders the notice a constitutional requirement. Clark argues the Sixth Amendment to the United States Constitution and article I, section 22 (amend. 10) of the Washington Constitution require Clark be informed of the nature and cause of the accusations against him. Clark argues this right includes the right to notice of the prosecutor's intent to seek the death penalty. Indeed, Clark argues the death penalty notice adds an additional element to the underlying crime of aggravated murder, citing 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).

Clark misreads Campbell. The statutory death notice here is not an element of the crime of aggravated murder. Instead, the notice simply informs the accused of the penalty that may be imposed upon conviction of the crime. While we require formal notice to the accused by information of the criminal charges to satisfy the Sixth Amendment and art. I, § 22, State v. Vangerpen, 125 Wash.2d 782, 787, 888 P.2d 1177 (1995), we do not extend such constitutional notice to the penalty exacted for conviction of the crime. State v. Lei, 59 Wash.2d 1, 3, 365 P.2d 609 (1961) (no constitutional requirement of notice regarding habitual criminal offender penalties). Due process in sentencing requires only adequate notice of the possibility of the death penalty. Lankford v. Idaho, 500 U.S. 110, 111 S.Ct. 1723, 114 L.Ed.2d 173 (1991).

We are confronted here with an issue of statutory interpretation. Both parties agree the Court may interpret RCW 10.95.040's service requirement by looking to analogous service statutes or rules. The State argues by leaving the notice with the staff of the defendant's attorney, it complied with CR 5 or substantially complied with RCW 4.28.080(15). The State also argues it may satisfy RCW 10.95.040 by serving the notice in a manner agreed to by defendant's attorney. Clark looks to RCW 4.28.080(15) and argues personal service on the defendant or the attorney As the Legislature itself did not define "service" under RCW 10.95.040(2), and, as the parties contend, there are multiple reasonable meanings to be given the term "service", we are faced with an ambiguous statute to interpret. Timberline Air Serv., Inc. v. Bell Helicopter-Textron, Inc., 125 Wash.2d 305, 312, 884 P.2d 920 (1994).

is required. Clark also contends CR 5 does not apply or was not complied with, and there could be no valid agreement waiving personal service.

We decline initially to adopt an interpretation of RCW 10.95.040 that allows any reasonable method of providing notice, as the State advocates. The determination to seek the death penalty must be made in a particularly careful and reliable manner and in accordance with statutory procedures. Luvene, 127 Wash.2d at 719 n. 8, 903 P.2d 960. In a death penalty case, "there is a need for reliability in the determination that death is the appropriate penalty," Woodson v. North Carolina, 428 U.S. 280, 304-05, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976). Courts must "insure that every safeguard is observed." State v. Frampton, 95 Wash.2d 469, 478, 627 P.2d 922 (1981).

For these reasons, in Dearbone, 125 Wash.2d at 182, 883 P.2d 303, where the State gave timely notice of intent to seek the death penalty by speaking in person to defense counsel and through voice mail, the...