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Method of murder:
Beating witha ball-peen
hammer
/ Stabbing
with knife
Location: King County/Snohomish County, Washington, USA
Status: Executed
by lethal injection in Washington on August 28,
2001
Summary:
In a full confession, Elledge stated that he made arrangements for
dinner with Eloise Fitzner and another woman.
They agreed to meet at the church where he worked as a custodian.
When they arrived, he gave them a tour, eventually directing them to
the Bible-Study Room, where he pulled a knife and bound them with
rope. When Eloise struggled, Elledge strangled her, then stabbed her
in the neck.
Elledge claimed she had interfered with a relationship he had a year
earlier. The other woman was taken forcibly to a mobile home and
sexually assaulted.
The following day, Elledge released her. She immediately went to
police. Elledge confessed, pled guilty, and waived appeals.
At the time of his arrest, Elledge was on parole for a 1975 first-degree
murder conviction in King County. He had other prior convictions,
including a 1965 armed robbery conviction in New Mexico.
Attorney General of Washington
Death Penalty Cases
Background of the James Elledge Case
On April 18, 1998, James Homer Elledge invited
Eloise Fitzner and her friend, referred to in court proceedings as "S.C.,"
for a night out that was to include gifts and dinner.
Plans were made to meet around 8:30 p.m. at the
Lynnwood church where Elledge worked. After a tour of the church,
Elledge guided the women to a Bible-study room and closed the door.
He pulled a knife and expressed anger over Ms. Fitzner’s alleged
interference in his marriage.
Elledge was unhappy with a letter Ms. Fitzner
wrote to his then-girlfriend approximately one year earlier, in
which Ms. Fitzner urged the woman to leave him and accused Elledge
of sexual advances towards Ms. Fitzner.
In the Bible-study room, Elledge bound the two
women’s wrists and ankles. He then put S.C. on a riser facing the
wall, with a sweatshirt over her head. S.C. could hear struggling
behind her and attempted to see what was going on.
When Elledge
caught her, he threatened to kill S.C. next if she did not turn
around. Elledge then strangled Ms. Fitzner with his hands. Uncertain
whether she was dead, he also fatally stabbed her in the neck. After
concealing the body, Elledge abducted S.C. and drove to his home in
Ms. Fitzner’s car.
On April 19, S.C. was released after Elledge
threatened to find her if she contacted the police. S.C. immediately
called police and an investigation began. On April 21, Elledge
called police from a Tacoma hotel room and surrendered.
In subsequent interviews with the police, he confessed to killing Ms.
Fitzner and described the slaying in detail. At the time of his
arrest, Elledge was on parole for a 1975 first-degree murder
conviction in King County. He had other prior convictions, including
a 1965 armed robbery conviction in New Mexico.
Elledge Asked His Jury to Impose the Death
Penalty:
From the time he voluntarily surrendered to
police, Elledge has acknowledged murdering Ms. Fitzner. He first
pled guilty in Snohomish County Superior Court on May 27, 1998,
after which the State filed a notice of special sentencing seeking
the death penalty. At the special sentencing proceeding on Oct. 20,
Elledge expressed remorse for the killing and asked the jury to
impose the death sentence, asserting that "this wicked part of me
needs to die." On Oct. 21, the jury decided that there were not
sufficient mitigating circumstances to merit leniency and the court
sentenced Elledge to death.
Appeals and Mandatory Review:
The state Supreme Court conducted its mandatory
review of the Elledge case and on July 5, 2001, upheld the verdict
and death sentence. The Court found that Elledge "knowingly,
voluntarily, and intelligently" waived his rights to appeal both his
conviction and sentence and was mentally competent to do so. The
Court then verified that: 1) there was sufficient evidence to
justify the finding that there were not sufficient mitigating
circumstances to merit leniency; 2) the sentence of death was not
excessive or disproportionate to the penalty imposed in similar
cases; 3) the sentence of death was not brought about through
passion or prejudice; and 4) the defendant was not mentally retarded.
On July 17, Snohomish County Superior Court Judge Joseph A.
Thibodeau signed the death warrant setting Elledge’s execution date
for Aug. 28, 2001.
James Homer Elledge (1943
– August 28, 2001) was an American murderer who was
executed by lethal injection in Washington State
Penitentiary for the murder of 47 year old Eloise
Jane Fitzner.
The
crimes
In 1965, Elledge robbed a Western
Union office in Albuquerque, New Mexico. During this
robbery, he also kidnapped a female attendant. He
was sentenced to prison in Santa Fe, New Mexico and,
after his parole, he wound up in Seattle,
Washington, where he killed motel manager Bertha
Lush in 1974 by beating her to death with a ball-peen
hammer in an argument over his bill. While in prison
for that crime, he got paroled three times, the last
of which happened in August 1995.
On April 18, 1998, Elledge
invited Eloise Fitzner and her friend, only referred
to as "S.C.", into a Bible-study room of a church
where he worked as a custodian. After closing the
door, he pulled a knife and bound the two women’s
wrists and ankles. He put a sweatshirt over S.C.'s
head and made her face the wall. When S.C. heard
struggling behind her, she tried to see what was
happening.
Elledge noticed this and
threatened to kill S.C. next if she did not remain
faced to the wall. Elledge first strangled Ms.
Fitzner with his hands and then, not sure if she was
dead, he fatally stabbed her in the neck. After
hiding the body, Elledge abducted S.C. and drove
them home in Ms. Fitzner’s car. At his home, he
sexually assaulted S.C. and released her the
following day. S.C. immediately went to police.
Elledge was arrested two days later and confessed.
Trial and Execution
On July 28, 1998, after being
found guilty, Elledge was sentenced to death.
Waiving all his rights to appeal, he was executed by
lethal injection on August 28, 2001 at Washington
State Penitentiary.
Wikipedia.org
ProDeathPenalty.com
As a young man, James Homer Elledge went to
prison in Santa Fe, N.M., for robbing a Western Union office, where
he also kidnapped a female attendant.
After his parole, he wound up
in Seattle in 1974, where he killed Seattle motel manager Bertha
Lush by beating her to death with a ball-peen hammer, in an argument
over his bill. In the years that followed, he won parole 3 times,
most recently in August 1995.
The 55-year-old Everett man surrendered to police
in Tacoma three days after stabbing and strangling Eloise Jane
Fitzner, 47, in a church basement on April 18, 1998.
Elledge
promised gifts and dinner to lure his victims to the basement of The
Lighthouse church in Lynnwood, where he worked as a custodian. Once
there, Elledge pulled a large knife and ordered the women not to
scream or he would slit their throats. Both women were bound with
rope, blindfolded and their mouths taped shut.
The 39-year-old woman
said she could hear Eloise struggling and Elledge dragging something
from the room. The woman said Elledge told her he had "taken care of"
Eloise, because she interfered with his attempts to get close to her.
Elledge then took the 39-year-old woman to his
mobile home in Everett, where she was sexually assaulted. He
released her the next morning, and she reported the abduction and
attack to Seattle police. Eloise's body later was found in the
church basement.
An autopsy showed she could have survived the stab
wound to her neck had she not been strangled. Elledge called the
Tacoma Police Department's homicide division at 9:30 a.m. three days
after the murder to say he wanted to surrender and was staying at a
motel. When the detectives pulled into the parking lot, Elledge
walked out with his hands up. Earlier the same day, Tacoma police
found Eloise's car, which Elledge had stolen after he killed her.
People who know Elledge said they were stunned by
these events. Former Lynnwood City Council member Bill Hubbard
roomed with Elledge between January and March 1997, when he lived at
the same Lynnwood apartments as Eloise. "Eloise lived two floors
above us," Hubbard said. "She was a very sweet person...active in
her church at University Presbyterian Church."
Elledge often did
repair work at Eloise's apartment but never accepted payment,
Hubbard said. Hubbard said he knew of Elledge's murder conviction
and talked with a church elder at The Lighthouse before allowing
Elledge to move in. Elledge proved to be a responsible roommate and
confided in Hubbard about his past, Hubbard said.
Hubbard said Elledge told him his sister had died
when he was young. He also told Hubbard that his wife died in the
1960s while trying to help someone in a car crash and that their 2
girls were raised by relatives. "Jim just never quite recovered from
that whole thing," Hubbard said.
In March 1997, Elledge's daughter
died, but he wasn't able to attend the funeral services because he
didn't have the money to travel to the South, Hubbard said Elledge
told him. "Considering everything he'd been through, he was showing
signs of progress and mainstreaming back into society," said Hubbard,
adding that he hadn't seen Elledge for several months.
Elledge later confessed that he walked into the
basement of the church with precut sections of nylon rope and plans
to kill a woman he simply didn't like.
Elledge admitted he was carrying a large, folding
knife and a long-simmering grudge against Eloise. In a tape-recorded
statement to police, Elledge admitted purchasing rope, and
precutting it into sections for binding the wrists and ankles of
Eloise, and another woman, 39, from Seattle.
The longtime convict, who is on parole for the
1975 beating murder of another woman, also described in detail how
he used his knife to threaten Eloise and the Seattle woman into
silence, and then tying them up. "The defendant told police that
Fitzner did not attack him or resist him in any way," according to
court papers. "He said that 'She ... she was trying...she was trying
to cooperate. But she didn't know what she was cooperating for."
The Seattle woman has told police she was
abducted to Elledge's Everett mobile home, sexually assaulted and
later set free. Prosecuting Attorney Jim Krider said before the
trial, "So far, the criminal justice system has failed the public in
protecting the from Mr. Elledge." The task for prosecutors now is to
make sure "that the system does not fail again," he added.
Elledge has prior convictions for robbery and
1st-degree murder for beating a Seattle motel owner to death in
1975.
The woman he killed roughly 2 decades ago was struck 28 times
with a ball-peen hammer, according to court papers. Eloise's killing
and the other woman's abduction touched of a brief, but intense,
manhunt for Elledge.
He surrendered to Tacoma police after trying at
least twice to commit suicide in his hotel room, according to court
papers. Elledge told the police that he killed Eloise because he was
angry with her for meddling in his relationship with his wife about
a year ago.
On the taped statement he gave police Elledge can be
heard admitting that because of something he describes as 'evil' in
his nature, he is sometimes filled with rage he can't control.
UPDATE:
James Elledge was executed early this
morning at the Washington State Penitentiary. His course toward
death was a speedy one, and Elledge, 58, hastened it at every
opportunity.
James Homer Elledge went quietly to his execution
early this morning, getting the sentence he pleaded for after
murdering a woman in the basement of a Lynnwood church.
Elledge told
a friend earlier that he had no intention of making a final
statement, however in a prison interview last year, Elledge said
said one reason he wanted to die was because he was a Christian, and
was remorseful for his sins. He has steadfastly maintained that he
deserved to die.
He instructed his lawyer to present no evidence
in the penalty phase of his trial that might encourage jurors to
spare his life. Those close to him said he viewed his impending
execution as a sort of redemption.
The victim's brother planned to spend the evening
with his mother and to wait up until he heard it was over. He had
hoped Elledge's final words would be to say he was sorry for
Fitzner's murder.
At the trial, Elledge told jurors those words
wouldn't bring Fitzner back. "He had an opportunity to choose his
words very carefully then, so I just don't think that was an
oversight on his part," Mr. Helland said.
Prosecutors and some jurors said the brutality
and pre-meditated nature of the crime, as well as a long criminal
history, which included a 1974 murder, clearly justified both the
decision to seek the death penalty and the verdict.
Jury forewoman M.L. DeMorett said in a recent
letter that Elledge deserved to die for a cold, calculated murder. "We
looked for areas where the system may have failed him," she said of
jury deliberations. "Comment was made that he had several chances in
life to get beyond the past. He still lost control and killed
another person, took another life."
The 2 detectives who investigated Fitzner's
disappearance and found her body chose to attend the execution, as
did the Snohomish County prosecutors who persuaded jurors to impose
the death sentence.
Lynnwood police Detective Jim Nelson said he
feels little sympathy for Elledge. "I feel a lot worse about her
than I do about him. He knows what's coming, he's had a chance to
make his peace with whatever he feels he needs to do. And he did
this to himself. He committed his second murder, he's been given
chance after chance."
National Coalition to Abolish
the Death Penalty
James Elledge - Scheduled Execution: 8/28/01,
3:01am EST.
James Elledge is awaiting execution by the state
of Washington, with his death presently scheduled for August 28.
Elledge pled guilty to the April 1998 murder of Eloise Fitzner,
receiving a death sentence later that summer.
The Washington State Supreme Court recently
affirmed Elledge’s death sentence despite Elledge’s willing
confession and guilty plea at trial. The Court has also acknowledged
the potential influence of the mitigating evidence which was never
presented at trial.
Elledge requested that his attorney not present
mitigating evidence on his behalf during the appeal phase following
his trial. Counsel chose to respect the wishes of his client, yet it
seems unfortunate and somewhat misleading that the jury was never
made aware of several significant aspects of Mr. Elledge’s past.
While serving an earlier prison sentence, Mr.
Elledge saved the life of a prison guard during a violent inmate
riot. Elledge’s early years were filled with abuse and neglect. He
started abusing alcohol as a young child and was sent to a juvenile
facility at age ten for breaking and entering.
His father was often
hospitalized for mental illness, leaving his mother alone with five
young children. She also turned to alcohol in the painful time that
followed. Elledge was traumatized at a young age by the death of his
sister.
The family continued to suffer as Elledge’s father killed
himself when James was thirteen, subsequently followed by the
suicides of two half-brothers. James Elledge left home at fifteen to
lead a life of repeated incarcerations and hospitalizations for
mental illness.
Elledge pled insanity at a 1975 trial, and though
his claim was rejected, the court stated that his mental illness
should be considered a mitigating factor.
In recent years, Elledge married a day-care
worker at his church and became known throughout his community as a
gentle and caring individual. He continues to be a devout Christian
who believes in a God who “has forgiven me for what I’ve done”. He
is clearly repentant for his crimes and more than willing to accept
whatever punishment is handed down.
For a state that has executed four people in
twenty years, it is the general belief, even among death penalty
supporters, that the punishment should be reserved for only the most
terrible criminals.
If Elledge dies, he will have received his death
sentence from a jury that was never informed of his mitigating
circumstances. One juror in James Elledge’s trial stated that if he
had known any of what was later reported in the media, “I could have
seen it changing my mind.” Legal advocates wonder if Elledge’s
decision to block the jury from hearing such favorable evidence
allowed the imposition of a “state-sanctioned suicide”.
A dissenting judge in Elledge’s appeal disputed
the court’s finding that the death penalty was commonly imposed in
cases similar to Mr. Elledge’s.
Judge Sanders challenged this
finding based on the fact that the death penalty was commonly
proposed, but most often not imposed, in the cases considered
comparable by the state court. Sanders feels it is unfair to use
“cases in which death was never imposed at all to support imposition
of death in later cases.”
By preventing the presentation of any mitigating
evidence at trial and waiving all his final appeals, Mr. Elledge
consents to a punishment that may affect the way state prosecutors
decide to apply the death penalty in the future.
Elledge’s
submission only fosters the state’s inconsistent imposition of
capital punishment. It is vital to speak out against the execution
of James Elledge, even if only to ensure that future punishments are
handed down fairly, and not merely at the state’s convenience.
James Elledge executed
OPB Radio
A double-killer from Snohomish County,
Washington is a step closer to becoming the fourth man executed by
Washington State since the reinstatement of the death penalty. A
closely-divided Clemency and Pardons Board recommended yesterday
that the execution proceed. Correspondent Tom Banse reports.
Convicted murderer James Elledge wants to die.
But should society grant his wish? Elledge is scheduled to die by
lethal injection later this month at the Walla Walla Penitentiary.
The only thing that could still save his life is a campaign by death
penalty opponents. And they're running out of avenues for appeal.
Washington's four Catholic bishops dispatched prison ministry
director Kevin Glackin-Coley to Olympia to plead for mercy.
Glackin-Coley: Mr. Elledge has clearly stated a
degree of remorse about this crime which has led him to believe --
in his own words – that there's an evil part of him which needs to
die and therefore by extension, he needs to die.
We believe that a
commutation to life without the possibility of parole would give him
an opportunity to deepen in that remorse in a way that could help
him recognize the ability to heal and to become a productive person
within prison.
Glackin-Coley directs his appeal to the members of
the state Clemency and Pardons Board. The church and a dozen other
anti-death penalty groups are intervening in the case against the
wishes of the convict. James Elledge had his personal attorney
restate his guilt.
Public defender Bill Jaquette: He wants the
penalty imposed because he shares the judgment of the jury and the
Supreme Court that that's the just and reasonable punishment in this
case. Elledge is being executed for the carefully planned murder of
a woman he lured to a Lynnwood church basement in 1998.
Jaquette did
not present any mitigating evidence at sentencing on orders from his
client, even though the attorney concedes it might have spared the
killer's life. The jury never heard about Elledge's horrific
upbringing or that he once protected the life of a guard during a
prison riot.
Jaquette: He'd had an advocate trying to produce
one result. If he'd had an advocate trying to produce the other one,
he might have had a different result. He may well have convinced one
juror not to execute him. Critics seize on this twist as evidence of
how hard it is to apply the death penalty in a fair and consistent
manner. Gonzaga University Law School professor Speedy Rice contends
the citizens are condoning a "state-assisted suicide."
Rice: Who's in control of the execution of James
Elledge? Well, from the beginning James Elledge has been in control
of this. And he's now the third person who's chosen this route of
using the state to accomplish the goal of death.
Two of the five
members of the Clemency Board express grave reservations about the
impending execution. But the other three say the law as written has
been followed.
The Snohomish County prosecutor offers reassurances
that the death penalty is highly appropriate for this defendant's
long record of murder, violent attacks, and attempted escapes. James
Elledge's fate now rests with Governor Gary Locke. Democrat Locke
has never stopped an execution and there's little reason to believe
now that he would commute this death sentence.
Killer Elledge is
executed
By Rebekah Denn, David Fisher and Scott Sunde
Seattle Post-Intelligencer reporters
Tuesday, August 28, 2001
WALLA WALLA -- James Homer Elledge went quietly
to his execution early this morning, getting the sentence he pleaded
for after murdering a woman in the basement of a Lynnwood church.
After midnight, Elledge was
strapped to a gurney, and prison officials began
administering a combination of four chemicals that
would render him unconscious, then kill him. He
declined an offer for a sedative to calm him.
Elledge was declared dead at
12:52 a.m., according to Assistant Attorney General
Gregory Rosen in Olympia. Witnesses said he had no
last words.
Shortly after 12:30 a.m., a white
curtain in the execution chamber rose. Through a
clear glass window, witnesses saw Elledge lying on
his back on a gurney, a dark blue sheet covering him
up to his neck, eyes closed.
Prison
Superintendent John Lambert
announced that “Inmate Elledge has
no last words.” The lethal
combination of drugs began flowing
at 12:39 a.m., with saline solution
followed by a relaxant, then by a
drug that impairs the nervous system,
then finally potassium chloride to
stop his heart. Elledge was
pronounced dead at 12:52 a.m.
His movements
were barely noticeable; his jaw was
at first tight, then more relaxed,
then his mouth opened slightly. He
appeared to take one deep breath a
few minutes into the process. All in
all, he appeared asleep both at the
beginning and at the end.
One execution
witness, Warren Cornwall of the
Herald of Everett, said that “if
there were any other movements he
made, they were so gradual and so
slight it was like watching the hour
hand on a clock.”
In his will, the
man who strangled and stabbed Eloise
Fitzner made it clear he believed
he'd been forgiven for his crimes.
"I commit myself
to God's care, secure in His love
for me and trusting in the salvation
purchased for me through the
suffering and death of His Son,
Jesus Christ," he wrote. "I leave
those who survive me the comfort of
knowing that I have died in this
faith, and have now joined my Lord
in eternal glory."
Elledge's execution
at the Washington
State Penitentiary
is the fourth since
the state reinstated
capital punishment
in 1981. He is the
third of the four
who wanted to die.
He pleaded guilty to
aggravated murder,
admitting he lured
Fitzner, an
acquaintance, to the
church where he
worked as a janitor.
Since then, he has
steadfastly
maintained that he
deserved to die. He
instructed his
lawyer to present no
evidence in the
penalty phase of his
trial that might
encourage jurors to
spare his life.
Those close to him
said he viewed his
impending execution
as a sort of
redemption.
Others saw different
religious overtones
to the case.
Fitzner's brother,
Michael Helland,
said yesterday he
saw the murder as a
"Good Samaritan"
killing, since his
sister, like the
biblical figure, had
tried to help others
down on their luck
without regard to
her own safety. And
Jim Johnson, pastor
of The Lighthouse, a
Free Methodist
church, compared the
crime in the church
that had befriended
him to Judas'
betrayal of Jesus.
Elledge, 58, met
with his court-appointed
defense attorney,
Bill Jaquette,
throughout the
night. He also had
frequent visits from
prison chaplain Gil
Alden.
At 4 p.m., prison
guards moved him
without incident to
an execution holding
cell to which was
added only a pillow,
a mattress, two
sheets, two towels
and three blankets.
He declined to eat
his last supper. His
final meal was the
breakfast he had at
6 a.m.: apple juice,
oatmeal, hashbrowns,
toast, a boiled egg,
coffee and milk.
Prison officials
then gave him two
hours -- an hour
longer than normal
-- of exercise time
outside.
Lawyers were ready
to file appeals at a
moment's notice if
he changed his mind,
but he didn't give
them the opportunity.
The process went far
more calmly than the
state's last
execution, of 27-year-old
Jeremy Sagastegui in
1998. Sagastegui's
mother had tried to
intervene on his
behalf, and his
execution was on
hold until early
evening while last-minute
appeals were debated.
Sagastegui raped and
killed a child, then
killed the child's
mother and a family
friend. The other
men executed here,
Westley Allan Dodd
and Charles
Campbell, were also
triple-murderers who
had killed at least
one child.
Outside the
century-old walls of the prison,
sparse crowds showed up to either
protest or praise Elledge's death.
About
100protesters gathered for a
candlelight vigil, culminating in 45
minutes of silent prayers and
reflection.
"When it's over,
we go home," said Kevin Glackin-Coley,
director of the detention ministry
for the Catholic Archdiocese of
Seattle. "Tomorrow, we wake up and
start trying to figure out a way
that we don't have to come back to
Walla Walla for another execution."
He said opponents
will probably ask the Legislature
for a moratorium on executions to
buy time to look at problems with
Washington's death-penalty law.
By 11 p.m., only
four people had showed up in an
enclosure the size of a football
field set aside for death-penalty
supporters. Kelly Budau, a clerk at
a Walla Walla Albertson's, said he
watched the news about previous
executions on television and decided
to turn out this year.
"If they done a
murder and that, they should die,"
he said.
Death penalty
opponents said Elledge's desire to
die pushed a more common murder case
that wouldn't normally have resulted
in execution over the edge. The jury
heard nothing about his past except
his long criminal history, and were
never told potential mitigating
information from his past, including
that he appeared to have a history
of mental illness and that he had
saved a prison guard's life during a
riot.
"This one is
really, really disturbing to me
because of who this individual is
and what his background is. He's
just not a person who qualifies or
should be executed -- he did a bad
thing, he belongs in prison, and I'm
very sorry for the family (but) he
is just not a death case," said
Gonzaga University Law Professor
Speedy Rice, who wrote the clemency
petition.
On Friday,
Catholic Archbishop Alex Brunett
called on Gov. Gary Locke to
reconsider his decision not to grant
clemency. The request was met with
silence.
"Clemency is
called for when there is some
extraordinary circumstance that
might require intervention or an act
of grace from the governor ...,"
Locke's counsel, Everett
Billingslea, said yesterday. "While
we certainly are cognizant of the
arguments about 'volunteers' and the
problems that presents, particularly
in this case, the governor doesn't
believe those circumstances are
present here."
Elledge had no
doubts about the course he chose.
"I don't look at
this as an execution, I look at it
as a separation," he told the
Seattle Post-Intelligencer earlier
this year. "There's a dirty part of
my soul, and I want it destroyed."
Helland, the
victim's brother, planned to spend
the evening with his mother
and to wait up until he heard it was
over. He had hoped Elledge's final
words would be to say he was sorry
for Fitzner's murder. At the trial,
Elledge told jurors those words
wouldn't bring Fitzner back.
"He had an
opportunity to choose his words very
carefully then, so I just don't
think that was an oversight on his
part," Helland said.
Prosecutors and
some jurors said the brutality and
pre-meditated nature of the crime,
as well as a long criminal history,
which included a 1974 murder,
clearly justified both the decision
to seek the death penalty and the
verdict.
Jury forewoman
M.L. DeMorett said in a recent
letter that Elledge deserved to die
for a cold, calculated murder.
"We looked for
areas where the system may have
failed him," she said of jury
deliberations. "Comment was made
that he had several chances in life
to get beyond the past. He still
lost control and killed another
person, took another life."
The two detectives
who investigated
Fitzner's
disappearance and
found her body chose
to attend the
execution, as did
the Snohomish County
prosecutors who
persuaded jurors to
impose the death
sentence.
Lynnwood police
Detective Jim Nelson
said he feels little
sympathy for Elledge.
"I feel a lot worse
about her than I do
about him. He knows
what's coming, he's
had a chance to make
his peace with
whatever he feels he
needs to do. And he
did this to himself.
He committed his
second murder, he's
been given chance
after chance."
But at least one
juror who voted for
execution had
reservations about
his decision after
hearing what Elledge
would not allow to
be presented at his
trial: that he saved
the life of a guard
during a prison riot,
that he may have
suffered from mental
illness and that he
had a childhood so
bleak that he asked
to stay in reform
school rather than
be sent home.
"I could have seen
it changing my mind,"
said Jon Sherrell,
the juror, told the
P-I earlier this
year.
For opponents of the
death penalty,
Elledge's execution
also underscored a
continuing flaw in
capital punishment
-- the volunteer. He
was put to death a
little more than
three years after
Fitzner's murder,
which is practically
light-speed for a
justice system that
can take years to
decide questions of
life and death.
Elledge's own family
did not attend the
execution, and had
honored his wishes
that none of them
intervene in the
case.
"I said years ago
that if he doesn't
change his life,
turn it around, he's
going to end up dead.
And like I say, it's
sad and I hate it,
but there's nothing
I can do about it,"
a brother, Allen
Elledge, said
earlier this year.
The murder took
place on April 18,
1998, when Elledge
invited Fitzner and
her friend to the
church. He had
presents waiting for
them , he said, and
would take them to
dinner afterward. It
was a trap.
Fitzner, 47, had
infuriated Elledge
the year before by
sending a letter
warning his
girlfriend, who
later became his
wife, against
Elledge, "that
horrible man."
Elledge's anger at
Fitzner simmered for
months, then blew
up. He planned the
murder, pre-cutting
lengths of cord to
bind the women; then
strangled Fitzner in
the church basement
and stabbed her in
the throat to make
sure she was dead.
Her friend, ordered
to face a wall,
heard Fitzner say
"No, stop, I can't
breathe," before a
brief struggle.
Fitzner's body was
discovered the next
day, crammed in a
church storage space,
her hands clasped as
if in prayer.
Elledge turned
himself into police
after trying to kill
himself twice,
sounding bewildered
at his own reasons
for the murder and
already determined
not to fight his
punishment.
Elledge spent most
of his life behind
bars, starting at
age 10 when he was
sent to a youth
prison for breaking
and entering.
He grew up in
poverty and
difficult times,
court documents said,
once asking to go
back to reform
school because he
was starving at home.
He went to prison in
Santa Fe, N.M., for
robbing a Western
Union office, where
he also kidnapped a
female attendant.
After his parole, he
wound up in Seattle
in 1974, where he
killed Seattle motel
manager Bertha Lush
in an argument over
his bill.
Elledge said one
reason he wanted to
die was because he
was a Christian, and
was remorseful for
his sins.
He believed God had
forgiven him, he
said in a prison
interview last year.
Some Killers More Than Ready to Die
But
Opponents Say When They Volunteer for the Death Penalty, the Whole
Process is Held Hostage
By Rebekah Denn -
Seattle Post-Intelligencer
reporter
Tuesday, August 7, 2001
James Elledge tried to kill himself twice after
committing murder in 1998. Failing in both attempts, he asked a jury
to let him die. It has taken longer than he wanted, but Elledge is
getting his wish. He's scheduled to be executed by lethal injection
Aug. 28 for the murder of Eloise Fitzner.
Elledge would be the fourth person executed since
the state reinstated its death penalty in 1981. And he would be the
third who wanted to die, presenting no defense and refusing appeals.
These are the so-called death penalty "volunteers," who have taken
the fastest and surest route to execution in Washington.
James Elledge didn't let a jury hear mitigating
facts in his case. The state Supreme Court has no legal problem with
killers seeking execution. In all three cases, it ruled that
mentally competent defendants are not required to put up a fight --
because they have a fundamental right to direct their own defense.
But the issue raises concerns that death-penalty
volunteers are short-circuiting a system meant to ensure that only
the worst possible criminals face execution. "I think it's
frightfully dangerous that it's happening, and, more importantly, I
think it's grotesquely irresponsible for the courts to allow it to
happen," said Thomas Hillier, director of the Federal Public
Defender's Office for the Western District of Washington.
He said some killers are using the system to help
themselves commit suicide. Triple-murderer Jeremy Sagastegui, he
noted, claimed he committed his horrific crimes so the state would
execute him. Sagastegui's mother tried unsuccessfully to save his
life, saying the jury should have heard evidence that he was
mentally ill and had been abused as a child. Sagastegui was executed
by lethal injection in 1998.
Triple-murderer Westley Allan Dodd, who was
executed by hanging in 1993, also fought for a speedy execution for
raping and killing three children. Elledge told his attorney not to
present any reasons to spare his life, and the jury heard none.
Dodd and Sagastegui's crimes were ghastly by any
standards. Sagastegui was babysitting for Mellisa Sarbacher in
November 1995 when he raped, stabbed and drowned her 3-year-old son,
Kieven, and then shot Sarbacher and her friend, 26-year-old Lisa
Vera-Acevedo when they returned home to Finley, a town southeast of
Kennewick.
Dodd killed William Neer, 10; his 11-year-old
brother, Cole; and 4-year-old Lee Iseli. Dodd, who had a record of
pedophilia, pleaded guilty to stabbing the Neer brothers in a
Vancouver park on Sept. 4, 1989, and strangling Iseli in Portland
the following month. He raped one of the boys and sexually molested
another.
But in Elledge's case, attorneys argued
unsuccessfully that the crime itself resembled many killings that do
not earn the death penalty -- but his death wish pushed the sentence
over the edge. Prosecutors say Elledge's criminal history, which
included a 1974 murder, contributed to the decision.
A recent Seattle Post-Intelligencer examination
of Elledge's life showed that, although Elledge chose not to let the
jury hear mitigating facts about his past, such facts did exist --
such as records that Elledge had suffered from mental illness, or
that he had once risked his life to save the life of a prison guard.
The issue of "volunteer" defendants raises contentious questions
among defense attorneys, who have no explicit national guidelines on
where their obligations lie. Bob Mahler, a Seattle lawyer and former
executive director of the North Carolina Death Penalty Resource
Center, finds the volunteer issue troubling on several counts,
saying that "the whole constitutional process is held hostage by one
individual."
The state's argument that defendants have the
ultimate right to direct their own defense doesn't hold up, he said,
because the Eighth Amendment to the U.S. Constitution compels the
court system to treat death-penalty cases differently from other
cases in all other respects. At the least, he thinks, independent
attorneys should be appointed to seek out potential mitigating
evidence for jurors to hear.
"The sentencer in Washington state is the jury,
not the defendant. ... Neither the defense lawyer in the case, nor
the trial judge, should permit the defendant to usurp the jury's
critical function in these cases," he said.
Beyond that, the life or
death decision in each case gets used later by the state Supreme
Court when it conducts its mandatory review of whether each death
sentence is proportional to cases where death is not imposed. "So
one defendant's refusal to present mitigating evidence ends up
skewing the balance for others who come in his wake."
Witness to an Execution
I Watched James Elledge
Die in Walla Walla
By Michael Hood -
Seattle Weekly
September 6-12, 2001
It was only nine o'clock
and they weren't going to kill him until after midnight.We were in a
makeshift media room inside the walls of the state penitentiary at
Walla Walla. We'd had to prove our identities, empty our pockets,
walk through a metal detector, and be patted down to wait here for
the execution of twice- convicted murderer James Homer Elledge, now
known to the Department of Corrections as "the ISCP" (Inmate Subject
to Capital Punishment). A few of us would be culled from the herd of
our peers to witness the lethal injection, as DOC procedures require.
Elledge, 58, admitted that he killed Eloise
Fitzner, 47, who was, from all reports, a nice, if naive, church
lady. With promises of gifts and dinner, he lured her and a friend
to Lynnwood's Lighthouse Free Methodist Church, where he worked as a
janitor.
His rage had simmered for over a year after she'd tried to
sabotage his relationship with a woman whom he later married. In the
church basement, he tied up and duct-taped the women, strangled and
stabbed Fitzner, and stuffed her in a closet.
The police say Elledge
then sexually assaulted the other woman and released her, and she
went directly to the authorities.
"There's something wrong with my nature," he
later told authorities. It wasn't the first time he'd confessed to
murder. He'd been serving a life sentence for beating a 63-year-old
woman to death in 1974 with a ball peen hammer when a member of the
Lynnwood church befriended him.
When he was paroled in 1995, church
members welcomed him into their fold, found him a room, gave him a
job, and included him in parish life. In return for their loving
kindness, they got a bloody betrayal and a lawsuit from the
surviving victim.
Elledge told the court, "There is a very wicked
part of me, and this wicked part of me needs to die." Against his
wishes, death-penalty opponents petitioned the Clemency and Pardons
Board, arguing that the jury should have been told that in 1987
Elledge saved a prison guard's life during a prison riot, and that
he once tipped off prison officials to the escape plans of other
inmates. The board voted against clemency, and Governor Gary Locke,
a former prosecutor who had the final call, denied it as well.
On this long Walla Walla night, two people could
still stop this seemingly inevitable sequence of events: Locke and
Elledge himself.
There's a live telephone in the death chamber for
any "legal impediments" to the execution--like a last-minute
gubernatorial clemency. Since Elledge had waived his rights, they
were his to reclaim at any time. Neither man had a change of heart.
Executions are relatively rare in Washington; this is the fourth
since the penalty was reinstated in 1981.
Child-killer Westley Allan
Dodd was hanged in 1993, as was triple murderer Charles Campbell in
1994; triple murderer Jeremy Sagastegui was lethally injected in
1998.
PEEKS UNDER THE SHROUD of secrecy draped over the
capital punishment process are carefully controlled by the state,
personified here by our evening's natty, chatty, and informative
master of ceremonies, Department of Corrections information officer
Veltry Johnson.
The details of Elledge's last day were few and
mundane, but details are what we were there for. It was like the Fox
News coverage of Gary Condit--too much time, too little news.
Questions from bored newsies went from the tedious to the ridiculous.
Q: What is he wearing? A: Orange prison-issue "felony pajamas," T-shirt,
sneakers. Q: Brand of sneakers? A: That information is not available.
Q: His mood? A: Somber. Q: Is he cooperative? A: Very. His last meal,
that hallowed tradition for the condemned, took on vital
significance. We were apprised that Elledge had chosen scrambled
eggs, bacon, hash browns, waffles, sweet roll, OJ, milk. And cold
cereal: Was it Wheaties? Special K? Inquiring minds of the free
press needed to know. We were scrounging for irony here, but the
shroud came down again--Johnson couldn't or wouldn't say. Then a
bombshell. Elledge had declined his last meal--AND the prison lunch
offered him that day. Why? "No reason given," said Johnson. What
then, did Elledge have for his 6 a.m. breakfast, essentially his
last meal? Johnson began the litany of boiled eggs, oatmeal, and
hash browns he was to chant throughout the evening. A reporter
pushed to find out what Elledge didn't eat by refusing lunch. There
was a lot of eye-rolling, and Johnson said he'd check into it.
NO ONE MADE US, the media witnesses, do this. We
all applied and were picked by some mysterious process. Eight all
together, we represented wire services, two TV stations, the Seattle
and Everett dailies, and small-town papers. I covered it not only
for Seattle Weekly but also for Agence France-Presse, a French
international wire service always hungry for the gory details of
American barbarity.
As we waited in a nondescript room once used by
the parole board, Veltry Johnson, ever the host, led a wide-ranging
conversation about executions past, notorious inmates, and capital
cases. There was plenty of the nervous black--sometimes called
gallows--humor that reporters, medics, and cops indulge in at times
like this. And plenty of waiting.
Execution was ordered for August 28 and scheduled
for a little after midnight. Legally, Johnson pointed out, it could
have been carried out at any time during that 24 hours. We groaned
and waited some more. Midnight came and went. So did the deadlines
for the morning papers. Reporters looked pained, cell-phoning shrugs
through the ether to cursing editors.
Finally, the phone rang:
Elledge was ready. Stripped of our watches and tools of the trade (lest
our notebooks and ballpoints contain cameras or microphones), we
were given prison-issue pens and paper and led through a maze of
gated, locked, and razor-wired chain-link fence along the 20-foot
cement outer walls bearing stenciled signs:
Out of Bounds - Inmate presence is unauthorized
and will be considered an escape - Lethal force will be used.
The high-ceilinged, double-duty viewing room has
two curtained windows, one for each choice provided the condemned:
one near the ceiling for hangings, another low for lethal injection.
The death house has a gallows unused since triple murderer Charles
Campbell was stretched in 1994. Elledge got to choose not only that
he would die, but how he would die. Before Campbell's execution,
U.S. Supreme Court Justice Harry Blackmun criticized Washington
state for its gallows. "Hanging," he wrote, "is a crude and
imprecise practice," noting that "the only three jurisdictions in
the English-speaking world that impose state-sponsored hangings are
Washington, Montana, and South Africa." Montana has since gone to
injection, and South Africa has abolished capital punishment.
Washington has spent lots of money over the years
defending its gallows. Campbell, the last man hanged, appealed his
case for years, claiming that hanging is cruel and unusual. The 9th
U.S. Circuit Court of Appeals barely rejected his claim by a 6-5
majority, and the U.S. Supreme Court declined to intervene.
In 1994,
a federal judge ruled that 410-pound Mitchell Rupe was so heavy he'd
be decapitated if he were hanged. (In Rupe's third sentencing trial
last year, jurors deadlocked on his death sentence, effectively
sentencing him to life without parole.) In 1996, the state
Legislature passed a law that prisoners sentenced to death will
receive lethal injection unless they ask for hanging.
We sat down on folding chairs, a wooden handrail
between us and the window. We were joined by four men from whom we'd
been scrupulously separated--two Snohomish County detectives and
deputy prosecutor John Adcock.
The other was William Jaquette,
Elledge's court- appointed attorney and friend. After shrinks found
Elledge competent, Jaquette represented his client's death wishes,
which was difficult because of his passionate opposition to the
death penalty.
Everybody in a free society, Jaquette says, has the
right to choose and direct his own defense. But, he told a reporter,
"the death penalty makes killers of us all. "It is bad law, a
terrible law," he says. "It's such a waste of human energy." Elledge
believed his Christian faith required him to die as redemption for
his crimes. Jaquette tried to convince him he was legally and
theologically wrong. Elledge was unmoved.
Jaquette says he represented his client as his
professional ethics require, and he's taken a lot of heat from death
penalty opponents. The clemency petition declared, "Mr. Jaquette and
the prosecution have acted as one throughout this case . . . this
has resulted in a complete failure of the adversarial balance
essential to our criminal-justice system." "He shouldn't have had
this as an option," Jaquette says.
WE SAT ON THE EDGES of our seats like kids
waiting for a puppet show. Then the curtain went up, revealing the
shitty little room with its exposed electrical conduits, elevated
now to the dramatic status of "death chamber." A small one-way glass
window behind Elledge's head concealed the anonymous "injection
team."
These "licensed medical practitioners" are chosen by prison
superintendent John Lambert, their identities known only to him.
Elledge lay on his back on the old wooden gurney.
The clear plastic
intravenous lines coming out of the wall behind him led to catheters
stuck in his arms under a dark blue sheet covering him feet to chin.
His arms sat on rests angled away from his sides, hands completely
covered with black tape. With his eyes and mouth closed, he looked
already dead. His scraggly beard was shaved, leaving one of those
bushy 1970s mustaches favored by cops. His thin, graying hair was
combed forward and looked blow-dried; his skin appeared very white.
He was laid out like a corpse at a mortuary viewing.
Lambert, a balding man in shirtsleeves, came out
and said hurriedly into a microphone, "Inmate Elledge has no last
words." There's more drama in putting down a dog, anesthetizing a
frog, or salting a slug than there was in watching this human die. I
stared at his chest with the dark sheet against the light wall to
detect a breath. I saw no movement. Some reporters said they saw a
breath, some said an eyebrow twitched; we all saw his jaw relax and
mouth open.
The first drug, two grams of thiopental, a
sedative, was so massive that even if they had stopped the other
chemicals, it would have been over. Then came a load of pancuronium
bromide, which paralyzed him from the neck down; finally, potassium
chloride stopped his heart. In these amounts, any one of these drugs
would be fatal.
They wanted to prevent a "Rasputin phenomenon," an
uncomfortable situation named after the mad monk who wouldn't die.
We witnessed very little. There was no beginning, and we knew it was
over only when the curtain fell and Veltry Johnson told us Elledge
had been pronounced dead at 12:52 a.m.
I felt ripped off. It seemed a mockery of the
witness requirement--we were supposed to view the alleged humanity
of this process, but we had no real access to it. His attorney had
left him at 11 p.m.
For all we know, in the next hour and a half he
could have changed his mind, tried to stop his execution, been
wrestled down by guards, had a needle stuck in his arm to shut him
up, and then been laid out for us to "witness."
I HAVE NO REASON to think this scenario happened--nor
that this Department of Corrections is evil. But I can't say that
about Texas, Florida, or some future DOC. The awesome power given
the state, with so much secret discretion in this life-and-death
duty, is for me the overriding argument against capital punishment.
Even if the judicial process could somehow be made perfectly just
and fair, the power to put to death should not be in human hands.
Two of the last three men executed since the death penalty was
reinstated here in 1981 have been "volunteers," waiving their rights
to appeal. Is it state-sanctioned suicide? Nancy Nelson, a
demonstrator from Seattle, won't let us off that easy. "We, the
citizens of this state, are killing him," she says.
Mike Helland, the brother of Elledge's victim,
never lobbied for or against Elledge's execution. But the role
Elledge played in deciding his own punishment bothers him. "I hope
that I get the justice that Eloise got. And that's death," Elledge
told police. "I want it so bad you can't believe it." Is the killer
getting what he wants? Is death the worst punishment? "He had a
choice," Helland says. "That's why my emotions on the death penalty
are so confused."
Elledge's execution drew far less attention and
protest than the previous three. The judicial system, usually so
pokey, went very quickly this time. And Elledge was a quiet, guilt-ridden
man who made no waves, said very little.
Outside the prison a
handful of people waited in an area designated for death penalty
supporters: a couple with their 8-year-old daughter, tourists drawn
to the lights, and Don Earney of Spokane, who said, "The Lord
willing, there'll be an eye for an eye."
In the area designated for those opposed, 100
demonstrators held signs that read "Revenge is bitter" and "Two
wrongs do not make one right." They prayed, lit candles, and made
the arguments against state- sanctioned vengefulness, the state's
completion and complicity in the circle of violence, racial
disparities, and the unique irreversibility of this punishment. "This
one's been very quiet," Timothy Kaufman-Osborn, vice president of
the American Civil Liberties Union of Washington, told The Seattle
Times. "And that's a problem, because it becomes all too easy for us
to forget that officials acting in our name are killing for
punishment."
A Harris Poll found that national support for the
death penalty dropped to 64 percent this year, down from 75 percent
in 1997 and 71 percent in 1999. "The recent debate about the quality
of justice in murder trials, the overturning of several convictions
as a result of DNA tests, and the resulting moratorium on executions
in Illinois have clearly had an impact on public attitudes to the
penalty," said Harris Poll chairman Humphrey Taylor.
The poll also found that 94 percent believed that
some innocent people have been convicted of murder. Only if these
numbers continue to decline will there ever be a change.
Judging by
the present U.S. Supreme Court, the probable philosophies of George
Bush's court appointees, and the southern Republican stranglehold on
the U.S. Congress, the abolishment of the death penalty must happen
at the state level.
Nancy Nelson's T-shirt asks the question that we
must press the American public to address: "Why do we kill people
who kill people to show people that killing is wrong?"
Dispute embroils killer's
request to die
Critics say Elledge's good side kept from jurors, resulting in 'state-sanctioned
suicide'
By Rebekah Denn - Seattle Post-Intelligencer Reporter
Saturday, July 7, 2001
There were a lot of things
the Snohomish County jury didn't know about James Elledge when they
sentenced him to die.
They knew he was a two-time killer, but they
didn't know about the man whose life he once saved.
They were told he was competent to stand trial,
but they didn't hear that he had pleaded insanity in a previous
case.
They didn't hear about a childhood so harsh he
once asked a parole officer to let him stay in reform school rather
than go home; or about a criminal justice system that was warned he
could kill again if let loose, and let him loose anyway.
The jury didn't know these things,
because Elledge didn't want them to know. Convinced
he deserved to die for killing Eloise Fitzner in
Lynnwood in 1998, he pleaded guilty to aggravated
first-degree murder, and instructed his lawyer not
to present any defense in the penalty phase of his
trial.
The Washington Supreme Court
affirmed Elledge's death sentence on Thursday, and
Elledge will not appeal the decision. If all goes as
expected, he will die by lethal injection later this
year.
"It's gotten to the point that's
the only thing I believe -- that I should pay the
maximum penalty for what I done," the 58-year-old
Elledge said in a recent interview at the Washington
State Penitentiary in Walla Walla.
"I don't look at this as an
execution, I look at it as a separation. There's a
dirty part of my soul, and I want it destroyed."
But information about Elledge's
past raises questions about the way the death
penalty was applied in his case -- renewing an
argument over whether a defendant's right to control
his own defense should trump the state's obligation
to apply a death sentence to only the most terrible
criminals.
Some say the distorted picture
the jury received in the Elledge case flies in the
face of the neutral application the state is
supposed to guarantee when it imposes its harshest
punishment. "Had this all been presented, it sounds
like a very good mitigating case, far better than
many that have resulted in life sentences (rather
than execution)," said Katie Ross, who co-chaired
the death-penalty committee of the Washington
Association of Criminal Defense Lawyers during the
Elledge case and unsuccessfully tried to intervene
on his behalf.
"Wouldn't you want to know those
things if you were deciding whether a person should
get the death penalty or life in prison?"
The issue is particularly
troubling because Elledge is not an isolated case.
If all goes as expected, he will become the third "volunteer"
out of four people executed in Washington since
1993. More than 10 percent of the people executed
nationwide since the death penalty was restored in
1977 after a five-year moratorium have wanted to die,
and the number is increasing, according to Richard
Dieter, head of the Death Penalty Information Center
in Washington, D.C. In Elledge's case, the jury's
job would have been far more difficult if Elledge's
attorney had presented the information the Seattle
Post-Intelligencer reviewed in his case. One juror,
Jon Sherrell, said he might have gone with life
imprisonment instead of death.
"I could have seen it changing my
mind."
A troubled
life
There's no doubt that Elledge is
guilty of Fitzner's murder. The question is whether
his crimes were as ghastly as others that led to the
death penalty in this state, and whether his choice
to block favorable details from the jury resulted
in, as several lawyers put it, "state-sanctioned
suicide."
As the jury was told during the
trial, Elledge was in and out of reform school from
the time he was 10. His first serious crime came at
age 21, when he kidnapped a Western Union clerk
during an armed robbery in New Mexico in 1964. He
killed a motel manager in Seattle in 1974, serving
21 years in prison.Each time he returned to society
through work release or parole, he got in more
trouble Finally, after his last parole in 1995, it
seemed as if he was getting his life in order.
He claimed to be sober. He had a
loving girlfriend, Ann Wesseler, who later became
his wife. He held a steady job as janitor in a
church, opened a maintenance business on the side.
He was part of his church community and was even
recommended for the position of trustee.
"I know there's a good part to
me," he said when pressed. "When I was outside this
last time, I displayed a lot of it."
Then his girlfriend received a
letter from Fitzner, a former friend and neighbor
who urged her to have nothing to do with Elledge. "Please
don't stay with that awful man anymore. He does not
even love you," Fitzner wrote.
"The hate and the anger that was
inside of me just came up," Elledge would tell
police.
It boiled over, months later,
after he and Ann had married. On a weekend when his
wife was out of town, Elledge invited Fitzner and a
friend out to dinner. Fitzner, an invalid, dressed
up for the rare night out in a fancy blue outfit.
Elledge lured them to the basement of the church
where he worked by telling them he had "presents"
for them. Instead, he bound them with lengths of
pre-cut rope.
Elledge then gagged and strangled
the terrified Fitzner. He stabbed her in the neck,
crammed her body into a storage space. He drove off
with her friend and sexually assaulted her at his
apartment, police reports say. Elledge denies the
assault.
He released the friend the next
day and drove to Tacoma. Three days later, he turned
himself in, saying he had tried to kill himself
twice. He pleaded guilty to aggravated murder, a
charge that carries only two possible penalties in
Washington: life without parole or death.
Elledge was represented by one of
the most experienced death penalty attorneys in
Snohomish County, Bill Jaquette, head of the county
public defender's office. Jaquette is personally
opposed to the death penalty but passionately
believed in Elledge's right to control his own
defense and used all his skill to help him.
Crimes fueled by
alcohol
Three years behind bars hasn't
changed Elledge's resolve to die for Fitzner's
murder.
The attack destroyed his lifelong
hopes that he would someday be free of prison. Even
if Fitzner had miraculously survived the attack, he
said he would have wanted to die. He considers
himself a Christian, and his 1974 crime still
weighed on his soul.
"Bertha. Bertha Maude," he said
when asked if he remembered the victim's name.
"Every time I'd drive by the graveyard out there
where she's buried at, well, I just felt so damned
guilty."
Despite the apparent success of
his parole, life on the outside was as strange at
times as life on the inside was terrible.
"I still didn't feel comfortable
out there at all," he said.
His prison records alone could
have predicted the disconnect. They draw a clear
picture of an "institutionalized" man who invariably
ran into trouble during his brief periods of
freedom.
"No use," wrote one corrections
officer after Elledge violated parole in another
state in 1990. "Might as well go get him and attempt
to save another life."
"It is obvious that Mr. Elledge
cannot adjust to life outside of prison," a
community corrections supervisor wrote in 1994. He
warned a state review board to "be extremely
careful" in considering whether to ever let Elledge
out of prison, writing that he strongly believed
Elledge was "at high risk" to kill again. And a 1995
report after his release clearly held little hope
for Elledge's redemption, saying a community
corrections officer will "keep a close eye on this
fellow until he escapes again."
Most of his crimes were fueled by
alcoholism. "I started so durned young in drinking,"
Elledge said. "Hell, I'm talking about a little kid,
7, 8 years old. I think that's what destroyed me."
Born and raised in rural
Louisiana, he was jailed when he was 10 for breaking
and entering, shortly after his father was
hospitalized for mental illness. His mother was
unable to cope with raising five children and turned
to alcohol, leaving a home environment "void of
either economic or emotional security," according to
a presentencing report in Elledge's 1974 murder.
He was traumatized at age 6 or 7
by the death of a beloved sister whom he says he
loved "more than my mother or daddy."
Then, Elledge's father died when
he was 13. A sociologist's report says two of his
half-siblings killed themselves after his father's
death, and that his mother attributed Elledge's
troubles to the loss of the father he loved.
He was hospitalized for months
with severe burns after an accident in a reform
school kitchen, and progress reports say he once
asked his parole officer to return him to reform
school "so that he could escape the unhappiness and
poverty at home."
Once home, he dropped out of
school and got a job to help support his family. He
told a psychiatrist in 1974 that he was "starving"
at home -- then left home at age 15.
Although many of his medical
records are sealed, psychiatric evaluations over the
past 35 years suggested he was a man of average to
above-average intelligence who was mentally ill. One
diagnosis was a "sociopathic personality disturbance";
another says "he has a number of characteristics
consistent with a serious personality disturbance";
another suggested he was brain damaged.
The 1975 jury did not accept that
Elledge was insane, convicting him of first-degree
murder, but the legal definition of insanity is
narrow. A defendant can be mentally ill -- which
could have been considered a mitigating factor by
Elledge's 1998 jurors -- without being legally
insane.
And even if his mental health was
sound, other factors could have influenced jurors
toward leniency:
- Elledge has family and friends
who could have tried to convince jurors his life was
worth sparing.
"He was sweet, he was funny. He
always made me laugh," said his wife, Ann, a former day-care
worker at Elledge's church who now lives with her mother
in south King County. Ann describes herself as "slow"
and said Elledge was always there to take care of her.
Duane Grooters, a friend, respects
Elledge for not fighting the death sentence and said he
believes there's a price to be paid for murder. But he
said he would have talked to the jury if Elledge had
wanted him to.
"He had made many friends within our
church, within our community. They were probably all
equally shocked when this happened," Grooters said. "He
is not a raging, violent person. He's got two distinct
sides to him, and I guess I would like people to know he
is not a violent murderer like so many murderers that we
think about."
- Elledge risked retaliation from
other inmates by alerting jail officials that high-profile
criminals were plotting to tunnel out of the Walla Walla
penitentiary in 1977. The tip led to "substantial
threats against his life," corrections documents said,
and he was moved to an Atlanta prison for his own safety.
- In the 1987 Cuban prison riots in
Atlanta, Elledge was credited with risking his life to
save a guard. A prison lieutenant wrote that Elledge
came to his aid "to help avoid the Cubans from taking me
hostage and gaining control of my security keys."
Elledge barred a door in the lieutenant's defense, the
memo said, stating that "he would fight for as long as
he could hold out."
- Elledge was frequently praised for
his work ethic and attitude while in prison, receiving
commendations and letters of support. He completed his
high school equivalency exam in prison and took classes
for anger management and substance abuse.
- His other crimes were committed in
an alcoholic haze. He insists to this day that his 1974
murder was not premeditated and should have resulted in
a lesser conviction than first-degree murder. His
original attorney still believes the jury made a mistake
in that case.
"I feel sorry for him, and I feel
sorry for the victims," said Lish Whitson, his 1975
attorney.
But Snohomish County Deputy
Prosecutor Mark Roe, one of two prosecutors who tried
the 1998 capital case, reviewed Elledge's prison records
and says the "what-ifs" weren't relevant given Elledge's
wishes. There is no question that Elledge was mentally
competent to make the decisions -- meaning he was able
to understand the charges against him and assist in his
own defense. That, for Roe and public defender Jaquette,
is the key point.
"Once you are (deemed) competent as a
criminal defendant, it is up to you to decide whether to
raise those other issues. And if you don't want to ...
you've got the right to make that decision," Roe said.
State-assisted suicide?
Elledge waived his appeals, but the
state Supreme Court was required to automatically review
all death penalty cases, in part to make sure the
penalty isn't given in cases where similar crimes or
criminals generally receive a lesser sentence. Two court-appointed
attorneys argued it was impossible for the court to
conduct that kind of review fairly when the justices,
like the jury, knew virtually nothing about Elledge
beyond his crimes.
Legally, the state has no problem
with Elledge's approach. The Supreme Court's Elledge
decision was the third time it has ruled that a
competent defendant is not required to present
mitigating evidence in his own defense.
Triple-murderer Jeremy Sagastegui,
executed in 1998, offered no defense at his trial and
later tried to block family members from intervening
with evidence that he was mentally ill and had been
abused as a boy.
Child rapist and murderer Westley
Alan Dodd, who became the first person executed in
Washington state in 30 years when he was put to death in
1993, pleaded guilty in his trial, called no witnesses
in the death penalty phase and waived all rights to
appeal the jury's death sentence.
But opponents say the issue touches
the same nerve that the U.S. Supreme Court recognized
when it temporarily banned the death penalty in 1972,
saying existing laws offered no way to distinguish the
criminals whose crimes and history did call for the
death penalty from those whose crimes and history did
not.
It was an issue that wracked a former
state Supreme Court judge, Robert Utter, who resigned in
1995 in part because prosecutors did not seek the death
penalty in a savage Seattle double murder. Utter said
prosecutors had sought death in far less brutal crimes,
and he believed the death penalty was being applied
inconsistently.
Legal precedents conflict, and likely
will continue to do so unless the U.S. Supreme Court
addresses the issue.
Until then, lower courts have dealt
with the problem in different ways.
The California Supreme Court ruled in
1985 that an attorney had not adequately represented his
client because he agreed to his client's request not to
present mitigating evidence in a death penalty case. The
9th U.S. Circuit Court of Appeals, though, ruled in 1996
that a Montana court was correct in allowing a murder
defendant and his attorney to withhold all mitigating
evidence in a case. And the New Jersey Supreme Court, in
a 1999 case, insisted on hearing mitigating factors in a
murder case over a defendant's wishes, but heard them in
a closed-door hearing.
The attorneys trying to intervene in
Elledge's case, Carl Sonderman and Paul Wasson,
unsuccessfully asked the state Supreme Court to appoint
independent lawyers who would seek out whatever
mitigating evidence they could find and present it to
the court. That would allow defense lawyers to avoid
violating the wishes of their clients, but allowing the
jury to hear the evidence.
Otherwise, opponents argue,
volunteers like Dodd, Sagastegui and Elledge make a
mockery of the adversarial process that forms the basis
of the criminal justice system in the United States. In
essence, Wasson and Sonderman wrote, "the prosecutor and
the defense attorney become a team seeking the death
penalty."
Defense attorney Jaquette takes issue
with that characterization. The end goal for Elledge and
for the prosecution may have been the same, he said, but
that doesn't mean they were on the same side. His
interest, he said, was to protect Elledge's dignity and
fulfill his wishes.
Besides, Jaquette said, there could
also be strategic reasons for a defendant to block
mitigating evidence. "Frequently, information that is
mitigating is not presented because it opens the door to
something else," Jaquette said.
Considers himself a Christian
Behind bars in Walla Walla, Elledge
is trying to live quietly while he hastens the path to
his death.
"I try to get along with everybody.
When I spend time I like to spend it quietly," he said
from behind safety glass on death row.
When he came to the prison in 1999,
he spent time with his Bible, memorizing favorite Psalms.
Now he spends more time reading, watching TV, and
writing letters, including those to his two daughters
and to the grandchildren he's never met.
Asked if had ever done anything in
his life he is proud of, he points to his children.
"Boy, they turned out super-good." But he has not added
their names to his list of approved visitors. He doesn't
want his loved ones coming to argue him out of his
decision, even though he says "I miss not being with my
people."
Fitzner, the murder victim, once
wrote that Elledge was an "awful man," someone who
claimed to be a Christian but didn't live a Christian
life.
Despite his crimes, Elledge still
considers himself a Christian, and believes in a God
that "has forgiven me for what I've done" and will not
fault his decision to seek death.
"The Bible talks about how you should
not learn to love this life. And ... I don't love it,
for particular reasons. I'm a convicted criminal. I'm
looking for a way out of this," he said. "I thought the
last time I was going to change. I'd done everything I
thought I could. "I just kept getting worse."
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
No. 67342-0
STATE OF WASHINGTON,
Respondent,
v. JAMES HOMER ELLEDGE,
Appellant.
En Banc Filed July 5, 2001
MADSEN, J.--James Homer Elledge pleaded guilty to one count of
aggravated first degree murder in Snohomish County Superior Court.
A
special sentencing jury concluded there were insufficient mitigating
circumstances to merit leniency, and the trial court sentenced him
to
death. Elledge waived his right to a direct appeal and asserts
before this
court that he wishes to be executed. We appointed amicus to
brief the
statutory review criteria enumerated in RCW 10.95.130. We
affirm Elledge's
sentence of death.
FACTS
a.
Facts of the Crime
On the afternoon of April 18,
1998, James Elledge invited Eloise
Fitzner and her friend, 'S.C.,' for a night out, promising them
gifts and
dinner.1 Verbatim Report of Proceedings (RP) at 1547; Ex. 43.
They
arranged to meet at Elledge's church, the Lighthouse Methodist
Church in
Lynnwood, Washington, at around 8:30 p.m. When Ms. Fitzner and
S.C.
arrived Elledge gave them a brief tour of the church, during which
they met
the pastor. After the pastor left, Elledge continued with the
tour.
Eventually, he guided the two women to Room 102, a bible study room
with
risers around its perimeter. After they entered the room,
Elledge closed
the door, pulled out a knife, and told Ms. Fitzner 'that {he} didn't
appreciate what she had done about a year ago, as far as trying to
mess the
marriage up between {he} and {his} wife.' Ex. 43; RP at 1549.
Elledge and Ms. Fitzner were former neighbors in the same apartment
complex. Approximately one year earlier, Ms. Fitzner wrote a
letter to
Elledge's then girl friend, urging her to '{not} stay with that
awful man
any more,' and asserting that '{Elledge} does not even love you' and
that
She is just using you for sex, and because he needs the income from
your
job.' Ex. 4. The letter further accused Elledge of making
sexual advances
toward Ms. Fitzner. Id. At some point, shortly after
Elledge's girl
friend received the letter, Elledge read it.
Despite the letter, Elledge and his girlfriend later married, but
Elledge
did not forget about the letter. In Elledge's words:
I had been carrying around . . . anger inside of me for over a year
{and
it} just got to the top and it just spewed out.
. . . .
That Saturday. Uh, I don't know, twelve,
twelve-thirty, something like that
was when this whatever it is inside of me came out. The rage
uh whatever
it is.
Ex. 43.
That rage led to a decision to murder Ms. Fitzner. Id.
Elledge went to
Fred Meyer to buy some rope, visited the church to prepare for the
murder,
and wrote two letters, one to his wife and the other to his employer.
Id.;
RP at 1603-04. As Elledge stated, '{i}t was premeditated {t}he
whole thing
was.' Ex. 43.
After Elledge confronted Ms. Fitzner in the prayer/bible
study room,
he bound the two womens' wrists and ankles with nylon cord.
Ex. 43. He
then put S.C. on an upper riser, placed a black sweatshirt over her
head,
and had her face the wall. RP at 1549. Elledge placed a
Bible next to
S.C., telling her it would keep her safe. RP at 1550.
S.C. could hear a
struggle and peeked a few times, noticing Elledge ripping off a
piece of
duct tape on one occasion. When Elledge caught S.C. looking he
told her to
turn around or she would be next. RP at 1551. The last
words heard from
Ms. Fitzner were, 'No, stop, I can't breathe,' as Elledge placed a
strip of
duct tape over her mouth. Id. Elledge then manually
strangled Ms.
Fitzner. Ex. 43.
Elledge then dragged Ms.
Fitzner underneath the riser. In his taped
confession, he explains his next actions:
Uh,
after I ??? choked her to death, uh there appeared to be some kind
of
movement still going on with the body. I guess that the body
was just
settling or something but I didn't uh want to take any chances and I
put a
knife in her neck.
Ex. 43.
Immediately thereafter, Elledge covered up Ms. Fitzner's body with 'several
blankets and shirts' and placed 'boxes and packages and stuff like
that on
top of her.' Id. The medical examiner testified that
either the
strangulation or stabbing injury alone would have caused Ms.
Fitzner's
death and that she was probably alive when she was stabbed, but may
have
been unconscious.
Elledge then fled the scene,
took Ms. Fitzner's car, abducted S.C., and
drove to his home. The next day, Elledge drove S.C. to her
vehicle and
released her, threatening he would find her if she contacted the
police.
Immediately upon her release, S.C. contacted the authorities and an
investigation began. Police located Ms. Fitzner's abandoned
car in Tacoma
on the morning of April 21. On the same day, Elledge
telephoned the police
from a Tacoma hotel room and surrendered.
Tacoma
police detained Elledge and detectives from Lynnwood came to Tacoma
to interview him. The detectives informed Elledge of his
Miranda rights,
and obtained a written and oral waiver. Miranda v. Arizona,
384 U.S. 436,
86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Elledge confessed to
killing Ms.
Fitzner, describing the crime in great detail. Elledge stated
the reason
for making his confession, and recounted his mental state at the
time
leading up to the killing.
{T}he thing is uh I've
already been convicted once of a first degree murder
and I'm still on parole for that. Uh, the Parole Board is
obviously gonna
revoke my parole uh and that is still carrying a life sentence . . .
{s}o I
don't feel that I have anything to uh gain or lose by holding back .
. . .
I've already made my bed, now I've gotta sleep in it the rest of my
life .
. . .
. . . .
I don't really think I'm looking for any you know kind of insanity
plea or
anything like that but I'm just saying that there's something wrong
with my
nature. I don't know where it comes from or what it is uh, but
at times uh
this particular type of nature comes up in me uh, an evil that I
can't
control uh. This happened several times in the past few years
but I had
been able to control a lot of it by uh power or prayer. I am a
Christian
but this particular time, Saturday, uh, it was just something I
couldn't
control.
Ex. 43.
b.
Procedural History
On April 24, 1998, Elledge
was charged by information with one count of
aggravated first degree murder, based on the aggravator of
kidnapping in
the first degree. At his arraignment on April 28, 1998, the
court entered
a plea of not guilty on Elledge's behalf, and Elledge was held
without
bail. On May 27, 1998, the State filed an amended information
and a notice
of special sentencing seeking the death penalty. That same day,
Elledge
entered a plea of guilty. The following typewritten statement
was included
in his guilty plea:
On April 18, 1998, in
Snohomish County, Washington, with the intent to
inflict bodily injury upon Eloise Fitzner, I tied up both she and
S.C. (DOB
11/01/58) and held them in a place where they were not likely to be
found,
and threatened them both with the use of deadly force, and in the
course of
and in furtherance of such crime, I choked Eloise Fitzner and
stabbed
Eloise Fitzner with the premeditated intent to kill her . . . .
Clerk's Papers (CP) at 226.
Elledge acknowledged
the above statement in open court and the trial judge
assessed Elledge's competency, as well as the voluntariness of his
plea.
The court accepted the plea, found Elledge guilty, and scheduled a
jury
sentencing proceeding for June 19, 1998. Following several
continuances,
voir dire began on September 30, 1998. The majority of the
venire panel
was informed that Elledge would not be contesting the death penalty.
A special sentencing proceeding commenced on October 20, 1998.
Following
an opening statement by the prosecution (the defendant reserved),
the State
presented its case. Three witnesses were called. First,
Detective Jim
Nelson, the lead detective on the case, provided general testimony
regarding the crime. Second, Dr. Daniel Selove, the medical
examiner,
presented testimony regarding the autopsy and examination of Ms.
Fitzner,
as well as the cause of her death. Finally, the State called
Michael
Helland, Ms. Fitzner's brother, who provided victim impact testimony.
Following the State's presentation, Elledge's attorney gave an
opening
statement and introduced Elledge, who delivered a statement of
allocution.
Elledge expressed remorse for the killing, but asked the jury to
impose the
death sentence asserting that 'this wicked part of me needs to die.'
RP at
1721. On October 21, 1998, the jury returned with an
affirmative answer to
the question: '{h}aving in mind the crime of which the defendant has
been
found guilty, are you convinced beyond a reasonable doubt that there
are
not sufficient mitigating circumstances to merit leniency.' CP
at 34.
That same day, the trial court sentenced
Elledge to death. Elledge was apprised of his right to appeal,
which he waived. Before this court, both Elledge and the State
advocate affirmance of Elledge's death sentence. We appointed amicus
to brief the mandatory statutory review criteria enumerated in RCW
10.95.130. We affirm Elledge's sentence of death.
ANALYSIS
Elledge waived his right to appeal
both his conviction and sentence. CP at 7-11. As such,
the scope of this court's review is guided by State v. Sagastegui,
135 Wn.2d 67, 954 P.2d 1311 (1998) and State v. Dodd, 120 Wn.2d 1,
838 P.2d 86 (1992).
First, we must determine
whether Elledge's waiver of his right to appeal was made 'knowingly,
voluntarily, and intelligently.' Sagastegui, 135 Wn.2d at 82;
Dodd, 120 Wn.2d at 18. If it was, we must next conduct the
statutory review mandated by RCW 10.95.130, which requires us to
answer four questions: (1) Was there sufficient evidence to justify
the finding that there were not sufficient mitigating circumstances
to merit leniency; (2) Was the sentence of death excessive or
disproportionate to the penalty imposed in similar cases; (3) Was
the sentence of death brought about through passion or prejudice;
and (4) Was the defendant mentally retarded?2
I. WAIVER OF APPEAL
For purposes of assessing
the validity of a waiver of the right to appeal this Court utilizes
the test approved by the United States Supreme Court in Whitmore v.
Arkansas, 495 U.S. 149, 165, 110 S. Ct. 1717, 109 L. Ed. 2d 135
(1990). Sagastegui, 135 Wn.2d at 83 (citing Whitmore).
This requires 'review of the trial court's determination, made
following a hearing, that the defendant made a knowing, voluntary,
and intelligent waiver of his right to appeal.' Id.
Specifically, we must assess whether the trial court erred in
concluding that 'the defendant had 'the capacity to understand the
choice between life and death and to knowingly and intelligently
waive any and all rights to appeal his sentence.'' Dodd, 120
Wn.2d at 22 (quoting Whitmore, 495 U.S. at 165). As we stated
in Sagastegui,
This requires us to determine if
the record supports its holding that the defendant (1) had the
capacity (or competency) to understand his options, and (2) was
provided with the requisite information to enable him to make a
knowing, voluntary, and intelligent decision to waive a general
appeal.
Sagastegui, 135 Wn.2d at 83.
The record amply supports the conclusion that Elledge was competent
to
waive his right to appeal. In determining a defendant's
competency this
court has referred to myriad factors, including the defendant's
demeanor,
statements by the trial judge, statements by counsel, and
psychiatric
reports. Dodd, 120 Wn.2d at 23. Dr. Kenneth Muscatel, a
clinical and
forensic neuropsychologist, conducted a psychiatric evaluation of
Elledge
prior to entry of Elledge's guilty plea. In his sealed report,
Dr.
Muscatel candidly describes Elledge's mental condition, ultimately
concluding that Elledge is competent to make informed decisions
regarding
the course of his defense.
Elledge's competency
was also assessed by Judge Thibodeau at the time
Elledge's guilty plea was entered on May 27, 1998. After
engaging in an
extensive colloquy with Elledge regarding his rights and the
voluntariness
of his plea, Judge Thibodeau asked Elledge's attorney for his
opinion.
THE COURT: Mr. Jaquette, there's no issue from your perspective as
to the
competency of the defendant in this particular case? He
appears to be
coherent and with me here this afternoon. Is there anything from
your
perspective that you would question at this time, sir?
MR. JAQUETTE: No, Your Honor. Mr. Elledge is competent and we have
had a
number of intelligent conversations about this whole matter and I'm
satisfied that he knows exactly what he's doing.
THE COURT: There was an evaluation done, I assume, in this case?
MR. JAQUETTE: There was.
THE COURT: And I would just ask that be made part of the record and
will
seal it at this point in time.
MR. TOWNSEND: The State will certainly be agreeable to that, Your
Honor.
THE COURT: The Court would--yes?
MR. TOWNSEND: Your Honor, I'd also indicate on the competency
issue that
my office has received reports from the Department of Corrections in
connection with Mr. Elledge's prior incarceration and those records
would
confirm the evaluation and observations by Mr. Jacquette, indeed,
that Mr.
Elledge has consistently been competent and of above-average
intelligence.
RP (May 27, 1998) at 10-11.
In this case, unlike in Dodd and Sagastegui, the trial court did not
call
expert witnesses to testify as to the defendant's competency prior
to
making its determination that a valid waiver had occurred. See
Dodd, 120
Wn.2d 10-11; Sagastegui, 135 Wn.2d at 84-85. Nevertheless,
following the
sentencing proceeding the court did conduct an on the record hearing
during
which time Elledge was informed of his rights and options in
appealing his
conviction and sentence. The court also revisited the issue of
Elledge's
competence, and made a specific determination that Elledge's waiver
was
made 'knowingly, voluntarily, and intelligently.' Sagastegui,
135 Wn.2d at
82. After the court explained to Elledge his right to appeal,
the
following exchange occurred:
THE COURT: The question I have for you as it relates to the general
appeal,
you understand, of course, the difference between life and death and
what's
happening in this particular case, don't you?
THE DEFENDANT: Yes, I do.
THE COURT: You also understand that Mr. Jaquette has represented to
this
Court, according to Dr. Muscatel, that you are competent to do what
you are
doing here today. Do you understand that as well?
THE DEFENDANT: Yes.
THE COURT: In order to do this you must waive this right to general
appeal
knowingly, intelligently, and voluntarily. Do you understand
that?
THE DEFENDANT: Yes.
THE COURT: Similar to the same way we went through the plea, that
you
knowingly understood the plea, you voluntarily entered into it, and
you
were advised of all your rights. Do you understand that as well?
THE DEFENDANT: Yes, I do.
MR. JAQUETTE: I'd like to read {Elledge's written waiver} to
the Court.
I've gone over this with Mr. Elledge. I'm satisfied he understands
what
he's doing and that he is knowingly and intelligently waiving his
right to
a general appeal.
1. Article I, section 22, of the Washington State Constitution
guarantees
me the right to appeal my conviction and sentence.
2. If I choose to exercise my right to appeal, the Washington
Supreme Court
will review the record of the proceedings and determine if any legal
errors
have been made.
3. Since I am indigent, I have the right to have an attorney
appointed to
represent me. That attorney would review the complete record
of this case
and prepare a written brief detailing all possible claims of legal
error in
the proceedings and would present oral argument on my behalf.
. . . .
9. I do understand the difference between a life sentence and the
death
penalty.
a. If I were to have been sentenced to life without the
possibility of
release or parole, I understand that I would serve the rest of my
life in
confinement and that that sentence could not be deferred or
suspended.
b. Because I have been sentenced to death the laws of
Washington require
that I be put to death by means of lethal injection unless I choose
the
lawful alternative of hanging.
10. Before my death sentence can be carried out, the laws of
Washington
(RCW 10.95.100 and 10.95.130) require that the Washington Supreme
Court
determine:
{Recitation of statutory review criteria}
With all of these facts in mind, I hereby waive my right to a
general
appeal of my conviction and sentence.
MR. JAQUETTE: Mr. Elledge signed that in my presence. I'm
satisfied he
understands what he said.
THE COURT: Is that true? Anybody force or threaten you today, Mr.
Elledge,
to sign this particular document, sir?
{THE DEFENDANT}: No.{3}
THE COURT: Did you go over the document in detail with Mr. Jaquette?
THE DEFENDANT: Yes, I did.
THE COURT: Did he fully explain to you the ramifications of this
particular
document?
THE DEFENDANT: Yes, he did.
THE COURT: You are still comfortable and satisfied with this? This
is
really what you want to do here today?
THE DEFENDANT: Yes.
THE COURT: You want the Court to accept this waiver?
THE DEFENDANT: Yes.
THE COURT: The Court will file the waiver for the record.
RP at 1773-78.
We are convinced that the hearing, coupled with Dr. Muscatel's
psychological report, is sufficient to satisfy the Whitmore test
even in
the absence of expert testimony. Indeed, the waiver hearing
approved by
the United States Supreme Court in Whitmore was less thorough than
the one
conducted in this case. In Whitmore
{the defendant} was questioned by counsel and the trial court
concerning
his choice to accept the death sentence, and his answers demonstrate
that
he appreciated the consequences of that decision. He indicated that
he
understood several possible grounds for appeal, which had been
explained to
him by counsel, but informed the court that he was 'not seeking any
technicalities.' In a psychiatric interview, Simmons stated
that he would
consider it 'a terrible miscarriage of justice for a person to kill
people
and not be executed,' and there was no meaningful evidence that he
was
suffering from a mental disease, disorder, or defect that
substantially
affected his capacity to make an intelligent decision.
Whitmore, 495 U.S. at 165-66 (citations omitted).
It is also notable that Elledge has been unequivocal in his intent
to seek
the death penalty since the time of his original guilty plea in May
1998.
As recently as May 1999, Elledge filed another written waiver, this
time
with this court, urging this court to expedite execution of his
death
sentence.
We hold that Elledge's waiver of his
right to appeal was made 'knowingly,
voluntarily, and intelligently.' Sagastegui, 135 Wn.2d
at 82.
II. MANDATORY REVIEW ISSUES
A. Sufficiency of Evidence
As
required by RCW 10.95.130(2)(a), we must determine whether there was
sufficient evidence to justify the jury's determination that there
were not
sufficient mitigating circumstances to merit leniency. The
test applied is
whether, after reviewing the evidence in the light most favorable to
the
prosecution, any rational trier of fact could have found sufficient
evidence to justify this conclusion beyond a reasonable doubt.
State v.
Rice, 110 Wn.2d 577, 623, 757 P.2d 889 (1988); State v. Stenson, 132
Wn.2d
668, 757, 940 P.2d 1239 (1997); State v. Brown, 132 Wn.2d 529, 551,
940
P.2d 546 (1997); State v. Gentry, 125 Wn.2d 570, 654, 888 P.2d 1105
(1995).
We have explained our review process in the following manner:
We do not weigh the aggravating factors against the mitigating
factors the
way the jury did; rather we consider the circumstances of the crime
and any
mitigating circumstances and determine whether a rational jury could
have
concluded that mitigating circumstances do not outweigh the
circumstances
of the crime.
Dodd, 120 Wn.2d at 24 (citing Rice,
110 Wn.2d at 624-25). In addition to
the circumstances of the crime, this court has looked to the
defendant's
criminal history in making its sufficiency determination.
Gentry, 125
Wn.2d at 654.
This case is unique in that Elledge
presented no mitigating evidence. In
Sagastegui and Dodd we held 'that a competent defendant may elect
not to
present mitigating evidence.' Sagastegui, 135 Wn.2d at 88.
See also State
v. Woods, 2001 WL 544002 at 24. Amicus concedes this point and
notes that
'it is not an understatement to say there is no evidence of
mitigating
circumstance to merit leniency in the trial record.' Amicus
Br. at 23.
Nevertheless, amicus urges this court
to depart from its holdings in Dodd
and Sagastegui and adopt a position whereby 'special counsel' would
be
appointed to investigate and present mitigating evidence. Id.
at 24
(citing Sagastegui, 135 Wn.2d at 87). In Sagastegui we
rejected this same
argument and we do so again today. Sagastegui, 135 Wn.2d at 88
('This
argument is nothing more than a request that we overrule Dodd and
hold that
a competent defendant cannot decide to not present
mitigating evidence to
the jury').
We believe the jury was justified in
its determination. Elledge manually
strangled and stabbed Ms. Fitzner. Indeed, as the medical
examiner
testified, the crime involved an element of torture, as Ms.
Fitzner's
'{s}uffering was both physical and psychological as strangulation
was
occurring the fear of the terror of having your airway
cut off, your--an
assault occurring.' RP at 1653. The crime was
premeditated; Elledge had
contemplated its commission for over a year. Ex. 43.
However, the most
significant aggravating circumstance in this case is Elledge's
criminal
record. Elledge was on parole for a prior first degree murder
conviction
at the time that he killed Ms. Fitzner. The following
stipulation was read
to the jury and provides an accurate and objective description of
Elledge's
significant criminal background:
1.
James Elledge was convicted of breaking and entering in Louisiana in
1953 at the age of 10 and was sent to a juvenile corrections
facility.
2. He was convicted of
another breaking and entering and a theft charge
in Louisiana in September, 1954, and again was sent to a juvenile
correctional facility.
3. He was also
convicted of a theft charge in 1956 and once again placed
in a juvenile corrections facility.
4.
In 1964, at the age of 21, Elledge committed an armed robbery in
October, 1964, in Roswell, New Mexico and was convicted thereof in
February, 1965.
The crime involved a robbery at a
Western Union office, in the course of
which he took the woman clerk hostage, hit her over the head with a
gun
rendering her unconscious, and poured gasoline on her.
For this crime Elledge was sentenced to prison for a term of 10 to
50
years. He served 7-and-a-half years . . . .
5. While in prison he escaped. He was convicted of
an attempt to commit
a felony and was given a concurrent 2 to 10 year sentence.
6. Elledge was released from prison on parole in 1972.
7. In May, 1974, in Seattle, Washington, Elledge
committed a murder and
was convicted of first degree murder in April, 1975. He had
killed 63 year
old Bertha M. Lush by hitting her with a ball-peen hammer. Ms.
Lush was
the night manager of the El Dorado Motel where Elledge was staying
and the
killing occurred in the course of an argument over the rent.
He received a life sentence with eligibility for parole for this
crime.
8. Elledge remained in prison
until July, 1989, when he was released on
parole to live with his daughter in Ruston, LA.
9.
His parole was revoked because of charges of attempted burglary of a
bar in November, 1989, and he went back to prison until he was again
paroled in April, 1994.
10. His parole was
again revoked in September, 1994, and he went back to
prison until he was again released in August, 1995.
RP at 1717-19.
Given the complete absence of any
mitigating evidence, and the presence of
several severe aggravating circumstances, we hold that the jury was
justified in its determination that leniency was not merited.
B. Proportionality
RCW 10.95.130(2)(b)
requires us to undertake a proportionality review
in each capital case to determine '{w}hether the sentence of death
is
excessive or disproportionate to the penalty imposed in similar
cases,
considering both the crime and the defendant.'4 The pool of
similar cases
includes those 'reported in the Washington Reports or Washington
Appellate
Reports since January 1, 1965, in which the judge or jury considered
the
imposition of capital punishment regardless of whether it was
imposed or
executed, and cases in which reports have been filed with the
supreme court
under RCW 10.95.120.' RCW 10.95.130(2)(b). RCW 10.95.120
requires filing
of reports '{i}n all cases in which a person is convicted of
aggravated
first degree murder.' This includes those cases 'in which the
death
penalty was sought and those in which it was not.' Brown, 132
Wn.2d at
554.5
Our proportionality review is guided by two
fundamental goals: to avoid
'random arbitrariness and imposition of the death sentence in a
racially
discriminatory manner.' Id. at 555. Consistent with
these objectives, we
have noted that our proportionality review
does not guarantee there will be no variations from case to case,
nor that
a sentence of death will be uniformly imposed in all superficially
similar
circumstances. Mathematical precision is unworkable and
unnecessary.
'There is no constitutional or statutory requirement to ensure an
unattainable degree of identity among particular cases which are
invariably
unique.' Instead, we must determine whether a death sentence
has been
imposed generally in similar cases, and not imposed wantonly and
freakishly.
Id. (footnotes omitted).
In ascertaining whether a death sentence is disproportionate, and
thus
wantonly and freakishly imposed, we utilize a four part test that
considers
both the 'crime and defendant' in relation to similar cases.
The four
factors are: ''(1) the nature of the crime, (2) the aggravating
circumstances, (3) the defendant's criminal history and (4) the
defendant's
personal history.'' State v. Elmore, 139 Wn.2d 250, 308, 985
P.2d 289
(1999) (quoting Brown, 132 Wn.2d at 555-56).
1.
Nature of the Crime
Elledge manually strangled
and stabbed Ms. Fitzner after binding her wrists
and ankles. He had contemplated the crime for over a year.
According to
the medical examiner, Ms. Fitzner's '{s}uffering was both physical
and
psychological as strangulation was occurring the fear of
the terror of
having your airway cut off, your--an assault occurring.' RP at
1653. As
we have stated previously, '{a} brutal murder involving substantial
conscious suffering of the victim makes the murderer more deserving
of the
death penalty.' Stenson, 132 Wn.2d at 759 (citing Gentry, 125
Wn.2d at
657).
Comparing this case with other 'similar
cases,' it is apparent
Elledge's crime was at least as vicious and brutal as others in
which the
death penalty was imposed, thus making it not disproportionate.
See Report
of the Trial Judge, State v. Rupe, No. 81-100-316-1 (Thurston County
Super.
Ct. June 7, 1982) (single gunshot wound to the head, no torture);
Report of
the Trial Judge, State v. Benn, No. 88-1-01280-8 (Pierce
County Super. Ct.
June 12, 1990) (gunshot wounds to the head and trunk, no torture);
Report
of the Trial Judge, State v. Charles Harris, No. 84-1-01190-6
(Pierce
County Super. Ct. Jan. 14, 1985) (gunshot wounds to the head and
neck, no
torture, contract killing).
2.
Aggravating Circumstances
Elledge pleaded
guilty to one count of aggravated first degree murder based
on the sole aggravator of kidnapping in the first degree. '{A}
single
aggravator will support the death penalty .' Elmore, 139 Wn.2d
309 (citing
Brown, 132 Wn.2d at 558). This is the lowest number of
aggravators
possible and places this case in the very low range of the pool of
similar
cases in this category. However, we do not view this case as
disproportionate in light of other cases in which the sentence of
death was
upheld based on a single aggravator. See Report of the Trial
Judge, State
v. Gentry, No. 88-1-00395-3 (Kitsap County Super. Ct. July 22,
1991);
Report of Trial Judge, Harris; Report of Trial Judge, Benn (each
finding
the death penalty not disproportionate based on a single aggravating
factor).
3. Defendant's Criminal
History
Elledge's criminal history is
extensive, consisting of convictions for four
juvenile offenses and three adult felonies. Two of Elledge's
adult
felonies were violent: first degree murder and robbery. In
Gentry we found
a prior manslaughter conviction to be 'particularly important' in
conducting our proportionality analysis. Gentry, 125 Wn.2d at
658.
In the pool of similar cases, only a small number of other
defendants had a
prior conviction for murder or manslaughter. See State v.
Vidal, 82 Wn.2d
74, 508 P.2d 158 (1973) (two murders); State v. Braun, 82 Wn.2d 157,
509
P.2d 742 (1973) (each defendant had a prior murder conviction);
Report of
Trial Judge, State v. Hughes, No. 82-1-01979-4 (King County
Super. Ct.
Mar. 14, 1984) (murder); Report of Trial Judge, State v. Benjamin
Harris,
No. 84-1-01190-6 (Pierce County Super. Ct. Jan. 18, 1985) (manslaughter);
Report of Trial Judge, State v. Charles E. Harris, No. 85-1-00093-1
(King
County Super. Ct. Oct. 31, 1985) (murder); Report of Trial Judge,
State v.
Dennis Curtis Williams, Jr., No. 85-1-00158-3 (Mason County
Super. Ct.
Aug. 29, 1986) (murder); Report of Trial Judge, State v. Christopher
Leo
St. Pierre, No. 84-1-00992-8 (Pierce County Super. Ct. July
22, 1987)
(murder); Report of Trial Judge, State v. Brian Keith Lord, No.
86-1-00470-8 (Kitsap County Super. Ct. Sept. 10, 1987) (murder); Report of
Trial
Judge, State v. Gentry, No. 88-1-00395-3 (Kitsap County Super. Ct.
Oct. 10,
1991) (manslaughter); Report of Trial Judge, State v. Charles B.
Finch, No.
94-1-0113-2 (Snohomish County Super. Ct. July 24, 1995) (manslaughter);
Report of Trial Judge, State v. Michael Kelly Roberts, No.
94-C-03249-2 SEA
(King County Super. Ct. July 14, 1997) (murder); Report of Trial
Judge,
State v. Dennis Keith Smith, No. 96-1-00957-1 (Clark County Super.
Ct.
Sept. 28, 2000) (murder). Over half of these defendants were
sentenced to
death. See Vidal, Braun, Benjamin Harris, Lord, Gentry, Finch,
Roberts.
Additionally, the penalty of death has been imposed in cases where
the
defendant had little or no violent criminal history. See
Report of Trial
Judge, State v. Mitchell Edward Rupe, No. 81-1-316-1 (Thurston
County
Super. Ct. July 12, 1982) (no history); Report of Trial Judge, State
v.
Mak, No. 83-1-00504-0 (King County Super. Ct. Oct. 19, 1983) (no
history);
Report of Trial Judge, State v. Bartholomew, No. 81-1-00579-1
(Pierce
County Super. Ct. Dec. 21, 1981) (non-violent theft, trespass,
possession
of stolen property); Report of Trial Judge, State v. Rice, No.
85-1-01004-0
(King County Super. Ct. July 21, 1986) (lewd conduct, grand theft
auto);
Report of Trial Judge, State v. Benn, No. 88-1-01280-8 (Pierce
County
Super. Ct. June 12, 1990) (nonviolent thefts, grand larceny,
numerous
misdemeanors); Report of Trial Judge, State v. Stenson, No.
93-1-00039-1
(Clallam County Super. Ct. Aug. 19, 1994) (drug convictions).
Elledge's criminal history is among the most extensive of any within
the pool of similar cases 'and shows a pattern of violence towards
others.' Brown, 132 Wn.2d at 559. This factor weighs very
heavily in our holding that his sentence of death was not
disproportionately imposed.
4.
Personal History
There was no mitigating
evidence presented to the jury in this case. In fact, Elledge,
through his counsel, argued there were no mitigating circumstances
to consider.
In sum, we have affirmed a verdict of
death in cases with less brutal crimes and the same number of
aggravating factors. Given the fact that Elledge's criminal
record of violent offenses is among the most significant of all
'similar cases,' we hold that Elledge's sentence was not wantonly
and freakishly imposed and therefore not disproportionate.
C. Passion or Prejudice
Next,
we must assess whether Elledge's sentence of death was brought about
through passion or prejudice. RCW 10.95.130(2)(c). As an
initial matter,
the jury was instructed that it was not to be influenced by passion,
prejudice, or sympathy. Nothing in the record indicates that
this
instruction was disregarded. See Sagastegui, 135 Wn.2d at 94 ('{o}ur
review
of the record discloses no evidence that the jury violated the trial
court's instruction to 'not be influenced by passion {or} prejudice''
(alteration in original) (quoting Clerk's Papers at 147)).
Second,
Elledge, Ms. Fitzner, and all 12 jury members were Caucasian, so
there is
no issue in this case as to racial bias.
Amicus
contends that because Elledge's attorney and the State were both
advocating imposition of the death penalty, the jury's verdict was
'obviously brought about through passion or prejudice.' Amicus
Br. at 63.
Specifically, amicus points to the admission of evidence relating to
the
facts of Elledge's prior criminal convictions, as well as admission
of a
letter from Elledge to his wife explaining the crime, as examples of
how
the adversarial process broke down. Amicus contends that
admission of
these evidentiary items was in violation of the rules of evidence
and
hence, because their admission was uncontested, the jury was
influenced by
passion or prejudice.
Initially, whether or not
admission of these items of evidence violated the
evidence rules is irrelevant in a case where a defendant has validly
waived
his right to appeal. The sole statutory question is whether
the sentence
was brought about through passion or prejudice, and therefore, the
only
issue before this court is whether the evidence was of the kind that
could
have produced this result. It was not.
In
Rice we held that the State is generally entitled to admit evidence
related to "the circumstances of the crime.' Rice, 110 Wn.2d
at 607. Indeed, in a death penalty case, the 'very nature of the
crime renders its narration an emotional event.' Id. at 606.
We have also held that a defendant's criminal history, both juvenile
and adult, is admissible in capital sentencing proceedings.
State v. Pirtle, 127 Wn.2d 628, 666-67, 904 P.2d 245 (1995). A
broad exclusion of facts germane to the defendant's crime and
background would impair the jury's ability to reach an informed
decision as to whether the sentence of death should be imposed. '{A}t
the penalty phase the jury decides a question the resolution of
which turns not only on the facts, but on the jury's moral
assessment of those facts as they reflect on whether defendant
should be put to death. It is not only appropriate, but
necessary, that the jury weigh the sympathetic elements of
defendant's background against those that may offend the conscience.'
Rice, 110 Wn.2d at 608 (quoting People v. Haskett, 30 Cal. 3d 841,
863-64, 640 P.2d 776, 180 Cal. Rptr. 640 (1982).
Amicus further contends that because defense counsel argued in favor
of imposition of the death penalty to the jury, the sentence was
brought through passion or prejudice. We disagree.
Arguments that courts characterize as improper appeals to passion or
prejudice include arguments intended to 'incite feelings of fear,
anger, and a desire for revenge' and arguments that are 'irrelevant,
irrational, and inflammatory that prevent calm and dispassionate
appraisal of the evidence.' Bennett L. Gershman, Trial Error
and Misconduct sec. 2-6(b)(2), at 171-72 (1997); see also Rice, 110
Wn.2d at 608; State v. Reed, 102 Wn.2d 140, 145-46, 684 P.2d 699
(1984) (prosecutor referred to defendant as liar four times, stated
defense had no case, and implied defense witnesses should not be
believed because they were from out of town and drove fancy cars);
United States v. McRae, 593 F.2d 700, 706 (5th Cir. 1979) ('turn him
loose, and we'll send him down in the elevator with you and his gun'
(quoting final argument)). No such arguments were made in this
case.
In this case, there was testimony, evidence,
and argument likely to incite an emotional response on the part of
the jury; however, it was limited to the circumstances of the crime
and the criminal history of the defendant. See Brett, 126 Wn.2d at
214 ('Arguments which may evoke an emotional response are
appropriate if restrict{ed} to the circumstances of the crime').
There is no indication the jury was swayed by passion or prejudice.
D. Mental Retardation under RCW 10.95.030(2)
The final statutory question is '{w}hether the defendant was
mentally retarded within the meaning of RCW 10.95.030(2),' which
provides: 'Mentally retarded' means the individual has: (i)
Significantly subaverage general intellectual functioning; (ii)
existing concurrently with deficits in adaptive behavior; and (iii)
both significantly subaverage general intellectual functioning and
deficits in adaptive behavior were manifested during the
developmental period.
RCW 10.95.030(2)(a).
The defendant bears the burden of proving he is 'mentally retarded'
by a preponderance of the evidence and expert testimony is required
to meet this burden. RCW 10.95.030(2). Since Elledge does not
contest his death sentence, he advances no affirmative argument on
this issue.
Regardless of this burden, there is no
evidence in the record that Elledge is mentally retarded. The
most that amicus can contend is that Elledge's statement of
allocution, as well as his taped confession, indicate he was
suffering 'from some sort of mental aberration or abnormality.'
Amicus Br. at 70. Specifically, amicus focuses on Elledge's
statements that his killing of Ms. Fitzner was prompted by
uncontrollable rage. Whether or not this is true, it clearly
does not meet the statutory definition of mental retardation.
Indeed, all indications are that Elledge is of at least average
intelligence. At Elledge's guilty plea hearing his lawyer
assured the court that Elledge was 'competent' and that they had
engaged in a 'number of intelligent conversations.' RP (May
27, 1998) at 10. Furthermore, at the same hearing, the prosecutor
noted that he had 'received reports from the Department of
Corrections and those records would confirm
that Mr. Elledge has consistently been competent and of above-average
intelligence.' Id. at 10-11. The trial judge also notes in his
final report that Elledge 'seems like a bright man.' Dr.
Muscatel did not specifically assess Elledge's intelligence level,
nor did he make a finding as to whether Elledge is 'mentally
retarded.' However, Dr. Muscatel did find Elledge to be
legally competent and there is nothing in his report indicating that
Elledge may be of subaverage intelligence. While none of the
above comments and reports definitively establish that Elledge is
not 'mentally retarded,' they are more than this court has required
in prior cases. See Elmore, 139 Wn.2d at 311 ('mental
disability was never an issue in this case and Elmore never claimed
it was. In fact . . . Elmore's attorney assured the court
Elmore was mentally competent'). Nevertheless, in future
cases, we advise counsel that if a competency evaluation is
conducted, an evaluation of whether the defendant is mentally
retarded within the meaning of RCW 10.95.030 should also be made.
CONCLUSION
We hold that Elledge's waiver of
his right to appeal was made 'knowingly, voluntarily, and
intelligently.' We further hold that: (1) there was sufficient
evidence for the jury to determine that there were not sufficient
mitigating factors to merit leniency; (2) Elledge's sentence of
death is not disproportionate to the sentences imposed in similar
cases; (3) the verdict was not brought about through passion or
prejudice; and (4) Elledge is not mentally retarded.
Accordingly, Elledge's sentence of death is affirmed.
*****
1 'S.C.' is a surviving victim in this case.
2 Amicus argues that this court is constitutionally mandated by
article I, section 14 of the Washington Constitution and the Eighth
Amendment to the United States Constitution to engage in a more
expansive review of Elledge's case than that set forth in RCW
10.95.130. See Amicus Br. at 11- 22. We rejected this
exact argument in Dodd and we do so again today. State v. Dodd, 120
Wn.2d 1, 20, 22, 838 P.2d 86 (1992) (holding that neither the
Eighth Amendment nor article I, section 14 mandates appellate review
beyond the statutory criteria of RCW 10.95.130 if there is a valid
waiver by the defendant).
3 The verbatim report of
proceedings attributes the answer 'yes' to Mr. Jaquette, Elledge's
attorney. Given the fact that the question was directed
specifically by the trial judge to Elledge, this would appear to be
a typographical error on the part of the court reporter.
4 Amicus raises several due process challenges to Washington's
proportionality review based on Harris ex rel. Ramseyer v. Blodgett,
853 F. Supp. 1239 (W.D. Wash. 1994), aff'd on other grounds, 64 F.3d
1432 (9th Cir. 1995). In Harris, a federal district court
judge held that this court's application of the statutorily mandated
proportionality review in RCW 10.95.130 violates due process.
As an initial matter, these arguments exceed the boundaries of this
court's statutory review and are improperly raised by amicus.
However, even if such arguments were properly raised, they have been
previously rejected by this court in In re Personal Restrain of Benn,
134 Wn.2d 868, 952 P.2d 116 (1998), habeas corpus granted on other
grounds sub nom. Benn v. Wood, 2000 WL 1031361 (W.D. Wash. Jun. 30,
2000). In In re Benn we explicitly rejected the district court's
decision in Harris noting that '{t}he existence of an analytically
flawed federal district court decision is not a compelling reason to
vacate this defendant's death sentence or reconsider the
proportionality review in his case.' Benn, 134 Wn.2d at 928.
5 Amicus contends that the pool of 'similar cases' should include
only those in which a sentence of death was ultimately affirmed.
Amicus Br. at 48. This court has directly rejected this
argument, noting that it will continue to utilize cases in which the
death penalty was ultimately vacated, so long as the penalty
determination was not overturned on the basis of the penalty being
disproportionately imposed. State v. Elmore, 139 Wn.2d 250,
311 n.26, 985 P.2d 289 (1999). Along these same lines, amicus'
argument that proportionality review is impossible unless the trial
judge reports are updated to indicate that a sentence of death has
been vacated is also rejected.
No. 67342-0
*****
SANDERS, J. (dissenting)
Proportionality review is vital to the capital process because
arbitrary or discriminatory imposition of the death penalty is
repugnant to the Eighth Amendment to the United States Constitution
and article I, section 14, of the Washington Constitution. In
re Personal Restraint of Rupe, 115 Wn.2d 379, 393-94, 798 P.2d 780
(1990). These provisions set forth the minimally acceptable
constitutional floor which our legislature may exceed by statute.
This, I argue, is exactly what RCW 10.95.130(2)(b) accomplished.
That statute requires us to consider: Whether the sentence of death
is excessive or disproportionate to the penalty imposed in similar
cases, considering both the crime and the defendant.
RCW 10.95.130(2)(b).
Notwithstanding this plain
language our statutorily required review has degenerated through
numerous iterations1 into the current 'wanton and freakish' standard,
finally becoming little more than lip service to the important
protection proportionality review was originally intended to offer.
I posit this subverts the statute contrary to the appropriate
function of the judiciary.
Ordinarily we do not
subject unambiguous statutes to the canons of judicial construction.
See Enter. Leasing, Inc. v. City of Tacoma, 139 Wn.2d 546, 552, 988
P.2d 961 (1999) ('When words in a statute are plain and unambiguous,
statutory construction is not necessary, and this court must apply
the statute as written unless the statute evidences an intent to the
contrary.'). Therefore let us initially focus on the plain
meaning of the words.
'Excessive' is defined as 'exceeding
the usual, proper, or normal.' Webster's Third New International
Dictionary 792 (1981). 'Disproportionate' means 'out of proportion,'
id. at 655, where 'proportional' is defined as 'corresponding in
size, degree, or intensity,' id. at 1819. Thus, the clear
language of the statute requires us to consider whether the sentence
of death exceeds the usual sentence imposed for similar conduct.
If so, it is disproportionate.
However, rather
than determine whether death was generally imposed in similar cases,
the majority now begins with the premise the defendant is 'qualified'
for the death penalty so long as it is not 'wantonly and freakishly'
imposed, notwithstanding how many others may have engaged in similar
conduct who were not executed. State v. Elmore, 139 Wn.2d 250,
308, 985 P.2d 289 (1999) ('If the facts of {the defendant's} case
are similar to some of the facts taken from cases in which the death
penalty was upheld, the proportionality review is satisfied.');
State v. Brett, 126 Wn.2d 136, 210-11, 892 P.2d 29 (1995) ('{T}he
legislative guidelines contained in RCW 10.95 within which the jury
must exercise its discretion ensure proportionality and eliminate
the ability of the jury, in all but the most aberrant case, to
impose the death sentence in a wanton and freakish manner.
Thus, our review, to be constitutionally sufficient, need only find
that aberrant or 'disproportionate' case.'). As Justice Utter so
eloquently stated:
What that opinion characterizes
as 'an increasingly broad approach' to defining 'similar cases' is
more aptly described as the gradual degeneration of judicial review
in capital cases, a process which reaches its low point with the
introduction into our proportionality analysis of a new, and
curiously elusive, concept: all murders falling within the purview
of RCW 10.95 are, ipso facto, proportionate--except when they are
not . . .
Id. at 227 (Utter, J., dissenting).2
Perpetuating this illusory 'proportionality' standard, the majority
now asks only whether the sentence was wanton, 'marked by or
manifesting heedless disregard of justice or of the rights . . . of
others,' Webster's Third New International Dictionary at 2575, and
freakish, 'being or befitting a freak : markedly odd or abnormal,'
id. at 904. I posit this new standard is, itself, 'wanton and
freakish' in its disregard for the plain language and intent of our
mandatory proportionality review under RCW 10.95.130(2)(b). I
challenge the majority to find any accepted definition of any term
used in the proportionality statute which incorporates 'wanton' or 'freakish.'
Rather it is plain these terms were lifted from Furman v. Georgia,
408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), which
described the minimum process due under the Fourteenth Amendment,
not that process due under our statute. See State v. Harris,
106 Wn.2d 784, 797-98, 725 P.2d 975 (1986) (citing Furman, 408 U.S.
at 310 (Stewart, J., concurring)).
Even if the
mandatory language of RCW 10.95.130 were ambiguous, which it is not,
the rule of lenity would require this criminal statute to be
strictly construed against the state, resolving all ambiguities in
favor of the accused. State v. McGee, 122 Wn.2d 783, 787, 864
P.2d 912 (1993). The proposition that 'our review, to be
constitutionally sufficient, need only find {a single} aberrant or 'disproportionate'
case' is a far cry from lenity, especially in this, the most
critical of contexts. Brett, 126 Wn.2d at 211.
I also take exception to the majority's continuing erroneous
consideration for proportionality review purposes cases in which the
death penalty was ultimately vacated. Although this practice
impermissibly skews the database review in favor of death, the
majority dismisses the issue in a mere footnote, defending its
position 'so long as the penalty determination was not overturned on
the basis of the penalty being disproportionately imposed.'
Majority at 16 n.5. This approach is utter nonsense since the
proportionality statute instructs us to consider the penalty
actually 'imposed' in similar cases, not the penalty 'proposed.'
Prior death cases are cited in the majority's proportionality review
only to justify the death sentence in the present case, and only
because death was proposed in the prior case, without regard to
whether a death sentence in the instant case is generally
proportional, i.e., the same as, the penalty imposed in all other
cases involving like conduct. See, e.g., Elmore, 139 Wn.2d at
308-11; State v. Davis, 141 Wn.2d 798, 882-84, 10 P.3d 977 (2000).
When the death sentence is reversed, and is never imposed, the case
must be considered as one where the death penalty wasn't imposed,
not one where it was--Brett, for example. See In re Personal
Restraint of Brett, 142 Wn.2d 868, 16 P.3d 601 (2001); Stephanie
Thomson, 'Guilty Plea Brings Life Without Parole,' The Columbian
(Vancouver, Wash.), Mar. 23, 2001, at 1.
Nonetheless, the majority summarily rejects these arguments and
would apparently allow cases in which death was never imposed at all
to support imposition of death in later cases.
Beyond that, the proportionality database is itself flawed because
it (1) does not contain any cases in which first degree aggravated
murder could have been charged but was not; (2) is not updated to
reflect the subsequent reversal of the cases it contains; and (3) is
missing a staggering number of cases required by RCW 10.95.130 in
which defendants were convicted of aggravated first degree murder
but no death penalty was imposed. Even if the court were to
consider whether death was generally imposed in similar cases (which
it no longer apparently does), the universe of cases we are supposed
to consider is markedly skewed by these factors against the
defendant, in favor of imposing death, and contrary to the statute.
Absent any demonstration in the instant case that the death sentence
is imposed more often than not for similar conduct, I dissent.
*****
1 See, e.g., State v. Lord, 117 Wn.2d 829,
911, 822 P.2d 177 (1991) (suggesting a 'family resemblances'
approach); State v. Benn, 120 Wn.2d 631, 680-93, 845 P.2d 289 (1993)
(suggesting a statistically based approach).
2 See
also State v. Benn, 120 Wn.2d 631, 697-98, 845 P.2d 289 (1993) (Utter,
J., dissenting); State v. Lord, 117 Wn.2d 829, 939, 822 P.2d 177
(1991) (Utter, J., dissenting); In re Personal Restraint of Jeffries,
114 Wn.2d 485, 505, 789 P.2d 731 (1990) (Utter, J., concurring in
part, dissenting in part).
