State v. Grisby

Decision Date17 June 1982
Docket Number46396-4,Nos. 45750-6,s. 45750-6
Citation647 P.2d 6,97 Wn.2d 493
PartiesThe STATE of Washington, Respondent, v. Henry GRISBY, Jr., Appellant. The STATE of Washington, Respondent, v. Raymond FRAZIER, Appellant.
CourtWashington Supreme Court

Michael A. Frost, Bruce D. MacClean, Seattle, John A. Strait, Tacoma, for appellant.

Henry Grisby, Jr., pro se.

J. Robin Hunt, Senior Deputy Prosecutor, Seattle, for respondent.

DOLLIVER, Justice.

Defendants Raymond Frazier and Henry Grisby were each convicted on five counts of aggravated murder in the first degree and one count of aggravated assault in the first degree. In the separate penalty phase of the trial they were sentenced to life imprisonment without the right to parole. The State had asked for the death penalty.

A series of events which began on March 1, 1978, ended the next morning with the deaths of three adults and two children, and the wounding of two adults including defendant Grisby.

On the evening of March 1, defendant Frazier went to the apartment of Michael Walker to purchase some heroin. Upon returning to his apartment and administering the drug to himself, Frazier became extremely ill. Several times during the evening and early the next morning Frazier returned to the Walker apartment to complain about the "bad drugs". Finally, Frazier returned with Grisby to Walker's apartment; they were armed with two weapons, a .32 caliber pistol and a .38 caliber pistol. An argument ensued and Frazier, as he admitted, opened fire on the occupants of the apartment, also wounding Grisby.

At this point there is a difference in the stories of the two defendants. Frazier claims that after he emptied the gun he dropped it and fled from the premises. Grisby, however, maintains that when the shots were fired he left the apartment and then discovered that he also was hit. He further claims that he was unarmed and never fired a shot.

The next day, March 3, defendant Grisby was arrested in Seattle. Frazier fled to Kennewick and was arrested the next day. The following day Frazier was transported back to Seattle by two Seattle police officers.

On direct appeal to this court, defendants claim error on the part of the trial court and between them raise eight issues.

It should be noted that the statute discussed herein relative to the death penalty, RCW 9A.32.040, while in effect at all times pertinent to this case, has been substantially amended since. See Laws of 1981, ch. 136, § 55, p. 494; Laws of 1981, ch. 138, § 21, p. 545. RCW 10.94.020 has been repealed. Laws of 1981, ch. 138, § 24 (16), p. 546.

I

A. Frazier and Grisby contend the provisions of RCW 9A.32.040 which they state require the "mandatory imposition of life imprisonment without possibility of parole (and) without consideration of mitigating circumstances" constitutes cruel and unusual punishment under the Eighth Amendment and Const. art. 1, § 14. They assert that the court must "allow the particularized consideration of relevant aspects of the character and record of each convicted Defendant before the imposition" of the life imprisonment without possibility of parole sentence, as is required before imposing the death penalty. Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976) (plurality decision); Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976).

We are not persuaded by this argument. The statutes provide for the death penalty (RCW 9A.32040(1))(held unconstitutional in State v. Frampton, 95 Wash.2d 469, 627 P.2d 922 1981)), life imprisonment without possibility of release or parole (RCW9A.32040(2)), and life imprisonment (RCW 9A.32040(3)). See also RCW 10.94.020. During the special sentencing procedure when the death penalty is sought (RCW 10.94.020), the issue of mitigating circumstances is before the jury. One of the requirements before the death penalty can be imposed is that the jury be 'unanimously convinced beyond a reasonable doubt there are not sufficient circumstances [see former RCW 9A.32.045(2)] to merit leniency.' RCW 10.94.020(8).

If the jury 'finds there are one or more aggravating circumstances but fails to be convinced beyond a reasonable doubt there are not sufficient mitigating circumstances to merit leniency' (RCW 10.94.020 (9)), the determination as to mitigating circumstances, as defendants correctly point out, serves only to reduce the penalty from death to life without possibility of release or parole. The jury may not, once it finds an aggravating circumstance, reduce life imprisonment without possibility of release or parole to life imprisonment by finding there were mitigating circumstances.

This statutory scheme, however does not make life imprisonment without the possibility of release or parole cruel and unusual punishment. The cases cited by defendants all concern the death penalty. The is no analogy between the death penalty and life imprisonment without parole. As the Supreme Court has observed, 'the penalty of death is qualitatively different from a sentence of imprisonment, however long.' (Italics ours.) Woodson, 428 U.S. at 305, 96 S.Ct. at 2991. Where aggravating circumstances are found by the jury it does not violate the Eighth Amendment of Const. art. 1, § 14, to sencence to life imprisonment without possibility of release or parole without further consideration of mitigating circumstances. No error was committed.

B. Defendants argue Laws of 1977, 1st Ex.Sess., ch. 206, p. 774, "AN ACT Relating to the death penalty ..." violates Const. art. 2, § 19: "No bill shall embrace more than one subject, and that shall be expressed in the title." Specifically, defendants complain that section 8, which deals with the matter of legal costs when a person raises a "substantial question of self-defense" is a separate subject. We have held Const. art. 2, § 19, should be liberally construed so as to sustain the validity of a legislative enactment. Water Dist. 105 v. State, 79 Wash.2d 337, 485 P.2d 66 (1971). As we noted in Kueckelhan v. Federal Old Line Ins. Co., 69 Wash.2d 392, 403, 418 P.2d 443 (1966):

So long as the title embraces a general subject, it is not violative of the constitution even though the general subject contains several incidental subjects or subdivisions. ... All that is required is that there be some "rational unity" between the general subject and the incidental subdivisions. If this nexus can be found, the act will survive the light of constitutional inspection.

(Citations omitted.)

The primary subject of the legislation is the death penalty. Under section 8, even a multiple homicide committed in self-defense would not be punishable by the death penalty and a person wrongly accused might be entitled to reimbursement for expenses involved in the legal defense. This is sufficient to meet the test of "rational unity." The statute does not violate Const. art. 2, § 19.

C. Defendant Frazier alleges violation of due process and a fair trial in that Grisby's counsel in his opening statement made the statement he would offer the testimony of a witness whom he later failed to produce. The circumstance was that in the opening statement it was said that Grisby would call a witness who would testify Frazier said several years ago that if he were ever involved in a homicide he would kill all witnesses. The witness was not called. The reason given by counsel for defendant was that he believed the testimony of the witness "was not as forthright as we would care to produce on proof of any fact."

Counsel may anticipate testimony in opening argument as long as there is a good faith belief that the testimony will be produced at trial. Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969). Here there was no allegation at trial of bad faith and the court specifically accepted the statement of Grisby's counsel as to why the witness was not called. Furthermore, the trial court instructed the jurors that an opening statement is not evidence and cannot be considered as evidence by them. The jury is presumed to follow the instructions of the court. State v. Kroll, 87 Wash.2d 829, 558 P.2d 173 (1976). There was no error.

D. In the penalty phase of the case, the court instructed the jury that the statutory mandatory minimum for life imprisonment with possibility of parole is 13 years 4 months. Defendants claim this is an erroneous definition of life imprisonment. It is, however, an exact statement of the statutory minimum time which must be served for a life sentence. RCW 9.95.070, .110, .115. Not only is the definition not erroneous, but the trial court also carefully instructed the jury so as to insure no undue emphasis would be placed on any instruction.

Defendants further contend that the instruction caused the jury to place undue reliance on the relatively short prison term specified in the statutory definition and thus select a harsher penalty. In support of this contention, defendants rely upon State v. Todd, 78 Wash.2d 362, 474 P.2d 542 (1970). In Todd, a capital case brought under a statute not now in effect, the sole sentencing function of the jury was to recommend whether defendant would be hanged. The court held that where the jury had no notion of how much time, if any, the defendant would serve if he were not sentenced to death, the trial court had a duty to inform the jury that the defendant, if not given death, would receive a life sentence. It was further held the defendant would serve such portion of that life sentence as the Parole Board determined. Todd, at 374-75, 474 P.2d 542.

In this case, however, the sentencing powers of the jury have been broadened by the new statute to determine whether the defendant should receive death, life imprisonment without parole, or life imprisonment with parole. RCW 9A.32.040(1), (2), (3). The first two choices are self-explanatory, but the last choice cannot be understood by the jury without...

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