State v. Frampton

• Decision Date: 16 April 1981
• Docket Number: 45634,Nos. 45570,45811,46328,47257-2 and 47285-8,45922,s. 45570
• Citation: 95 Wn.2d 469,627 P.2d 922
• Parties: The STATE of Washington, Respondent, v. Morris John FRAMPTON, Appellant. The STATE of Washington, Respondent, v. Floyd William MARR and Douglas Edward Justice, Appellants. The STATE of Washington, Respondent, v. Nedley G. NORMAN, Jr., Appellant. The STATE of Washington, Respondent, v. Howard Eugene FOREN, Appellant. The STATE of Washington, Respondent, v. Michael G. ROBTOY, Appellant. The STATE of Washington, Appellant, v. Timothy Robert PAULEY, Defendant, and Scott Carl Smith, Respondent. The STATE of Washington, Appellant, v. Robert DeANGELIS, Respondent.
• Court: Washington Supreme Court

Page 469

95 Wn.2d 469

627 P.2d 922

The STATE of Washington, Respondent, v.Morris John FRAMPTON, Appellant.

The STATE of Washington, Respondent, v.Floyd William MARR and Douglas Edward Justice, Appellants.

The STATE of Washington, Respondent, v.Nedley G. NORMAN, Jr., Appellant.

The STATE of Washington, Respondent, v.Howard Eugene FOREN, Appellant.

The STATE of Washington, Respondent, v.Michael G. ROBTOY, Appellant.

The STATE of Washington, Appellant, v.Timothy Robert PAULEY, Defendant, andScott Carl Smith, Respondent.

The STATE of Washington, Appellant, v.Robert DeANGELIS, Respondent.

Nos. 45570, 45634, 45811, 45922, 46328, 47257-2 and 47285-8.

Supreme Court of Washington, En Banc.

April 16, 1981.

Timothy K. Ford, Anthony Savage, Seattle, Carl Teitge, Robert Deutscher, Tacoma, Ellen Yaroshefsky, David Middaugh, Stewart P. Riley, Seattle, John L. Farra, Aberdeen, for appellants.

Norman K. Maleng, King County Prosecutor, Gregory P. Canova, Stephen E. Moore, J. Robin Hunt, Deputy Pros.Attys., Seattle, Don Herron, Pierce County Prosecutor, Ellsworth Connolly, Deputy Pros.Atty., Joseph D. Mladinov, Special Asst. Deputy Pros.Atty., Tacoma, Dan Clem, Kitsap County Prosecutor, Ronald A. Franz, Deputy Pros.Atty., Port Orchard, Curtis M. Janhunen, Grays Harbor County Prosecutor, Montesano, Jeff Campiche, Pacific County Prosecutor, Jeremy Randolph, Special Deputy Pros.Atty., South Bend, for respondents.

DOLLIVER, Justice.

These cases are before the court pursuant to an order of October 10, 1980, calling for briefs and oral argument on certain issues relative to the death penalty.All of the cases involve an attempt by the State to impose the death penalty for the crime of aggravated murder in the first degree.RCW 9A.32.040-.047;RCW 10.94.010-.030.

Nedley Norman, Jr., Howard Foren, Michael Robtoy, Floyd William Marr, and Morris Frampton are here on appeal from first degree murder convictions and sentences of death imposed after sentencing hearings held pursuant to RCW 10.94.020.Each of their death sentences was imposed by the trial judge pursuant to RCW 9A.32.040(1), after the jury returned affirmative answers to each of the sentencing questions posed by RCW 10.94.020(8)-(10).

Douglas Justice is here on appeal from his conviction of first degree murder and the sentence of life imprisonment without possibility of parole or release imposed on him after his jury returned a negative answer to the "mitigating circumstances" sentencing question posed by RCW 10.94.020(8).

Scott Smith and Robert DeAngelis are here on interlocutory appeals by the State of trial court rulings that the death penalty could not be constitutionally imposed in light of State v. Martin, 94 Wash.2d 1, 614 P.2d 164(1980), andUnited States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138(1968).In Smith's case, the trial court ruled the death penalty was unconstitutional in light of Martin, but held that the defendant could still receive life imprisonment without possibility of parole if he was convicted on a not guilty plea.In the DeAngelis case, the trial court dismissed the Notice of Death Penalty without indicating what punishment was available if the defendant was convicted at trial.

Except for Robtoy, who declined to plead and had a plea of not guilty entered by the court, all defendants have at all times pleaded not guilty to these murder charges.

Defendant Smith contests our review of the order issued by the trial court.This matter was considered by the Supreme Court Commissioner and in an order dated September 23, 1980, the commissioner ruled the order of the trial court to be appealable.On October 23, 1980, we denied Smith's motion to modify the commissioner's ruling.His case is properly before us.Defendant Pauley is not a participant in this proceeding.

The five issues which the court accepted for argument are:

1.Whether the present statutory scheme for imposing the death penalty is unconstitutional in light of State v. Martin, 94 Wash.2d 1, 614 P.2d 164(1980);

2.If so, may the State still seek and have imposed in cases of aggravated first degree murder, the punishment of life imprisonment without the possibility of parole;

3.Whether the special sentencing proceeding for imposing the death penalty unconstitutionally withdraws from the jury the question of the appropriate sentence;

4.Whether it is possible for a jury to make a prediction as to the future dangerousness of a defendant which is required by RCW 10.94.020(10)(b); and

5.Whether death by hanging is cruel and unusual punishment.

The issues will be dealt with in this sequence.

We are not considering (1) whether the death penalty is per se unconstitutional and violates the Eighth AmendmentandConst. art. 1, § 14, or (2) whether "the sentence of death (in any of these cases) is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant".RCW 10.94.030(3)(b).

I

RCW 10.94.020(1) provides:

If notice of intention to request the death penalty has been served and filed by the prosecution in accordance with RCW 10.94.010, then a special sentencing proceeding shall be held in the event the defendant is found guilty of murder in the first degree under RCW 9A.32.030(1)(a).

RCW 10.94.020(2) provides, in part:

(If) the trial jury returns a verdict of murder in the first degree under RCW 9A.32.030(1)(a), then, at such time as the verdict is returned, the trial judge shall reconvene the same trial jury to determine in a separate special sentencing proceeding whether there are one or more aggravating ... and ... mitigating circumstances ... and to answer special questions ...

In State v. Martin, supra at 8, 614 P.2d 164, the court found there was "no current statutory provision that authorizes the impaneling of a special jury to decide the death penalty issue when a capital defendant pleads guilty."We held that since there is no statutory means by which the death penalty can be imposed when a defendant pleads guilty, the maximum penalty which could be imposed on a plea of guilty to first degree murder is life imprisonment with a possibility of parole.

The State now argues, however, that within existing statutes there is a method whereby the death penalty can be imposed when there is a guilty plea in a case of first degree murder.To reach this result, it urges that we construe RCW 10.49.010 in pari materia with either RCW 10.94.020(1) or RCW 10.94.020(2).

RCW 10.49.010, a statute enacted in 1854 and unchanged since then, provides:

If, on the arraignment of any person, he shall plead guilty, if the offense charged be not murder, the court shall, in their discretion, hear testimony, and determine the amount and kind of punishment to be inflicted; but if the defendant plead guilty to a charge of murder, a jury shall be impaneled to hear testimony, and determine the degree of murder and the punishment therefor.

Under the analysis of the State, following a plea of guilty, a jury, as authorized by RCW 10.49.010, would be impaneled under a "special sentencing proceeding"(RCW 10.94.020(1), (2)), deliberate pursuant to the procedures contained in RCW 10.94.020(3)-(10), answer the special questions under that portion of the statute and determine whether the sentence would be death or life imprisonment without parole.

Prior to the enactment of RCW 9A.32(1975 and 1977) and RCW 10.94(1977), the Washington statutes relative to trial by jury and murder in the first degree were RCW 9.48.030,RCW 10.01.060andRCW 10.49.010.A guilty plea was allowed and, in the event of such a plea, it was mandatory that a jury then "be impaneled to hear testimony, and determine the degree of murder and the punishment therefor."RCW 10.49.010.Under this system, the degree of murder and the punishment was determined by the jury whether a defendant pleaded guilty or not guilty.SeeState v. Davis, 6 Wash.2d 696, 108 P.2d 641(1940).

In State v. Martin, we held a defendant could plead guilty under the current statutes.Given this ruling, the question posed by the State is: When a defendant pleads guilty to aggravated first degree murder is a jury to be impaneled under RCW 10.49.010 to determine the degree of murder and the punishment therefor, and is that same jury then to conduct a special sentencing proceeding under RCW 10.94.020?Did the legislature intend the old scheme for impaneling a jury in the event of a guilty plea to be continued under the new statutes?We do not believe it did.

If the legislature had meant RCW 10.49.010andRCW 10.94.020(1) and (2) to be read together when a defendant pleaded guilty, it is unreasonable to believe it would have failed to say so.RCW 9A.32andRCW 10.94 are carefully drafted, complex and interrelated statutes.They represent an attempt by the legislature to provide for the imposition of the death penalty when certain conditions have been met.It is readily apparent that RCW 9A.32andRCW 10.94 as they pertain to the death penalty are meant to be read as an integrated whole.Nowhere in the legislative history or in the language of the statute is there the slightest suggestion to the contrary.

RCW 10.94.010 sets up a procedure whereby:

When a defendant is charged with the crime of murder in the first degree as defined in RCW 9A.32.030(1)(a), the prosecuting attorney or the prosecuting attorney's designee shall file a written notice of intention to request a proceeding to determine whether or not the death penalty should be imposed when the prosecution has reason to believe that one or more aggravating circumstances, as set forth in RCW 9A.32.045 as now or hereafter amended, was present and the prosecution intends to prove the presence of such circumstance or circumstances in a special sentencing proceeding under RCW 10.94.020.

The special sentencing proceeding provided by RCW 10.94.020(1) and (2) is described in great detail in RCW 10.94.020(3)-(10).For ...