State v. Cross

• Decision Date: 30 March 2006
• Docket Number: No. 71267-1.,71267-1.
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Dayva CROSS, Appellant.

Page 80

132 P.3d 80

156 Wn.2d 580

STATE of Washington, Respondent, v. Dayva CROSS, Appellant.

No. 71267-1.

Supreme Court of Washington, En Banc.

Argued June 22, 2004.

Decided March 30, 2006.

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Todd Maybrown, Allen Hansen & Maybrown PS, Kathryn Lund Ross WA State Death Penalty Assistance Center Seattle, WA, for Appellant.

Deborah A. Dwyer, King County Prosecutor Office/Appellate Unit, Norman Kim Maleng, Donald James Raz, Attorneys at Law, James Morrissey Whisman, Lee Davis Yates, King County Prosecutor's Office, Seattle, WA, for Respondent.

Beth Marie Andrus, Attorney at Law, Seattle, WA, for Amicus Curiae on behalf of American Civil Liberties Union of Washington.

CHAMBERS, J.

¶ 1 Dayva Cross killed three people, his wife and two of her three daughters. The King County Prosecuting Attorney's Office sought the death penalty. After Cross pleaded guilty to three counts of aggravated first degree murder and one count of kidnapping, a sentencing jury sentenced him to death. We must determine whether he has shown reversible error. Finding he has not, we affirm.

FACTS

¶ 2 One March 1999 evening, Cross struck his wife, Anoutchka, in the face during an argument. The next morning, Anoutchka's 13-year-old daughter, M.B., woke to the sounds of Cross brutally and repeatedly stabbing her mother and her elder sister, 18-year-old Solome, to death. Clerk's Papers (CP) at 1217-20; Report of Proceedings (RP) (Apr. 17, 2000) at 110. Cross then tried to force his way into the bedroom M.B. shared with her 15-year-old sister, Amanda. Despite Amanda's efforts to keep the door closed, Cross forced it off its hinges and killed her in front of M.B.'s eyes. RP (Apr. 18, 2001) at 20-22. Cross then kept M.B. confined at knife point for five hours while he drank wine and watched television. Id. at 60; CP at 1220. M.B. escaped after he fell asleep. RP (Apr. 18, 2001) at 37.

¶ 3 Cross was arrested without incident that afternoon. RP (Apr. 16, 2001) at 93-96. After he was arrested, officers and medics reentered the home, confirmed that the victims had been killed, and took pictures of the crime scene. CP at 1098. Officers conducted a more sweeping search after they obtained a search warrant. RP (Apr. 12, 2001) at 31.

¶ 4 Cross has a long history of mental illness. RP (Apr. 11, 2001) at 52-53, 55; RP (May 1, 2001) at 47. Before March 1999, he had one prior criminal conviction for misdemeanor reckless endangerment. RP (Apr. 11, 2001) at 52. He has attempted suicide at least two times since the 1999 killings. In attempting to take his own life, Cross has fractured his skull and cervical column, has injured his brain and spine, and has rendered himself paraplegic. Id. at 51, 60-61; RP (Apr. 23, 2001) at 74-92. One jury panel had to be dismissed after widespread media coverage of one of his suicide attempts.

¶ 5 Initially, Cross pleaded not guilty by reason of insanity and informed the court he also intended to present a diminished capacity defense. CP at 281-82. Some time later, and against his counsels' advice, he withdrew his not guilty plea and entered an Alford plea. RP (Sept. 25, 2000) at 49-52; See N. Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); State v. Newton, 87 Wash.2d 363, 552 P.2d 682 (1976). The trial judge accepted Cross's plea only after a probing inquiry, which included a competency evaluation at Western State Hospital and review of extensive argument and evidence. CP at 1212-1647; 2156-62; RP (Oct. 15, 2000) at 11-39; RP (Oct. 19, 2000) at 2-34; RP (Oct. 23, 2000) at 9-198. In his Alford plea, Cross specifically denied premeditating the murders. CP at 1651-87. At that time, the prosecution effectively agreed that he could argue lack of premeditation to the sentencing jury as a mitigating factor. His counsel began preparing a mitigation defense based in part on Cross's mental health history.

¶ 6 Cross made frequent furious outbursts in court, often swearing at the judge and prosecution. E.g., CP at 2273. While Cross vacillated somewhat, he became increasingly set against presenting expert testimony on his mental health. CP at 2151. Because counsel was adamant this testimony was required Cross made multiple motions to fire his attorneys, proceed pro se, or have different counsel appointed. E.g., RP (Apr. 18, 2001) at 6; CP at 2148. It is clear from the record that his counsel believed Cross's best chance to avoid a death sentence was his poor mental health. E.g., RP (Feb. 12, 2001) at 2-10; CP at 2185-87. This conflict created increasing tension.

¶ 7 After two unsuccessful tries, a sentencing jury was impaneled. This jury considered testimony from experts, from Cross's family, and from friends and family of his victims. RP (May 1, 2001) at 3-159; RP (June 22, 2001) at 13; RP (May 14, 2001) at 4. The jury unanimously found beyond a reasonable doubt that mercy was not warranted, and Cross was sentenced to death. RP (June 22, 2001) at 16. This appeal followed.

ANALYSIS

¶ 8 Cross pleaded guilty to the underlying crime. Most of the issues before the court are limited to the sentencing phase and will be given heightened scrutiny. State v. Benn, 120 Wash.2d 631, 648, 845 P.2d 289 (1993). We construe procedural rules liberally in capital cases even when errors are raised for the first time on appeal. State v. Lord, 117 Wash.2d 829, 849, 822 P.2d 177 (1991).

1. JURY SELECTION

¶ 9 Cross challenges the exclusion of several jurors who expressed concerns about the death penalty. We find no error.

¶ 10 The Sixth Amendment guarantees the right to a fair and impartial jury. State v. Brett, 126 Wash.2d 136, 157, 892 P.2d 29 (1995). To protect both the defendant's right to a fair sentencing hearing, and the State's ability to adequately present its arguments, trial courts first "death qualify" the jury by ascertaining whether the individual jurors will be able to impartially judge both the case and the penalty. See Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). We do not exclude a juror who has scruples about capital punishment unless the views would "`prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" Wainwright, 469 U.S. at 424, 105 S.Ct. 844(quoting Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980)); cf. RCW 4.44.170(2) (allowing challenges for cause "[f]or the existence of a state of mind on the part of the juror ... which satisfies the court that the challenged person cannot try the issue impartially and without prejudice to the substantial rights of the party challenging"). Opposition to the death penalty is no bar to serving on a capital sentencing jury so long as the prospective jurors can "temporarily set aside their own beliefs in deference to the rule of law." Lockhart v. McCree, 476 U.S. 162, 176, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986).

¶ 11 Trial courts bear the heavy responsibility of ensuring that a jury is "death qualified." State v. Brown, 132 Wash.2d 529, 593, 940 P.2d 546 (1997). The trial judge's factual conclusion is reviewed for manifest abuse of discretion. Brown, 132 Wash.2d at 601-02, 940 P.2d 546; see also Wainwright, 469 U.S. at 428, 105 S.Ct. 844 (review is deferential). Whether a juror can actually set aside personal opposition to the death penalty is ultimately a factual decision, and we give considerable deference to the trial judge's determination, especially since the trial judge is in the best position to assess juror body language, tone, and verbal responses. Cf. Brown, 132 Wash.2d at 603-04, 940 P.2d 546(finding no abuse of discretion when trial court excluded a juror with strong objections to the death penalty who nonetheless said she could follow the instructions, specifically noting that her body language clearly indicated otherwise); State v. Rupe, 108 Wash.2d 734, 749, 743 P.2d 210 (1987) (Rupe II). However, the erroneous exclusion of a single juror who has scruples about the death penalty, but is nonetheless qualified to serve, results in automatic reversal. Gray v. Mississippi, 481 U.S. 648, 659, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987).

¶ 12 We consider each juror challenged separately.

A. JUROR 8

¶ 13 Juror 8 initially told the court that "I would support the death penalty depending on the case and the circumstances." RP (Feb. 28, 2001) at 41. After further reflection, he informed the court he would have difficulty considering the case objectively because Cross was confined to a wheelchair:

[W]e have to decide whether or not the defendant should die for the crimes, no matter how heinous they may be. And given the condition that he's in, I'm not sure that I could make that decision. It just seems to me to be a little bit wrong, or I don't feel comfortable making that decision.

RP (Apr. 5, 2001) at 80. Later, he said, "I would have a hard time [sentencing a paraplegic to death]. I'm not sure I could be totally unbiased." Id. at 81. After a brief argument between prosecution and defense, the trial judge excused the juror for cause concluding that:

[W]hat he is telling us today is that [his prior willingness to consider the death penalty] is no longer accurate, having considered it, thought about it, given his current physical condition, there is no way that he believes he could make a decision fairly.

And it is not that he couldn't make a decision, but he cannot make a decision fairly.

Id. at 83.

¶ 14 This challenge raises a difficult question because Cross's disability is a potential mitigating factor. See Skipper v. S. Carolina, 476 U.S. 1, 4-5, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986); Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (holding the constitution requires "that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a...