(1955–February 8, 2006) was a convicted murderer who died of
liver disease in the Washington State Penitentiary in Walla
Rupe had been tried several
times for the same crime, a 1981 robbery in which he shot and
killed two bank tellers in Olympia, Washington. Rupe was
sentenced to die, but in 1994, a United States federal judge
held that Rupe was too heavy to hang.
Rupe was 400 pounds at the
time, and the judge was concerned that execution by hanging
could cause Rupe to be decapitated, which would constitute cruel
and unusual punishment.
Rupe’s 2000 re-trial allowed
him to escape a renewed death sentence when the jury deadlocked
by an 11-1 vote in favor of the death penalty, falling short of
the unanimous verdict required by Washington law for imposition
of a death sentence.
Rupe, inmate found too heavy to hang, dead at 51
By Nicholas K. Geranios - The Seattle Times
Tuesday, February 7, 2006
Mitchell Rupe, a
former death row inmate once found too obese to hang, died at the
Washington State Penitentiary in Walla Walla today following a
long illness, a prison spokeswoman said. He was 51.
Lori Scamahorn said Rupe died shortly after
noon at the prison hospital. He had been there since Jan. 3 in the
final stages of liver disease.
Rupe shot Olympia bank tellers Twila Capron and
Candace Hemmig to death at point-blank range during a 1981 robbery
that netted about $4,000.
Juries twice sentenced him to death, but higher
courts overturned the sentences for various reasons. In 1994, a
federal judge upheld his conviction but agreed with Rupe's
contention that at more than 400 pounds, he was too heavy to hang
because of the risk of decapitation. Rupe argued that hanging
would constitute cruel and unusual punishment.
At the time, Washington's only manner of
execution was hanging. The main method now is lethal injection,
though a condemned inmate can opt for hanging.
Relatives of the victims attended numerous
court hearings over the years, hoping to see Rupe executed.
Prosecutors tried for the death penalty a third time in 2000, an
effort that cost more than $1 million, but the Thurston County
jury deadlocked 11-1 in favor - just shy of the unanimous vote
required for capital punishment. He got a life sentence by default.
Former Rupe defense attorney Todd Maybrown said
in 1998 that Rupe suffered from terminal liver disease, advanced
cirrhosis and hepatitis C and had a life expectancy of 18 months.
Frank Brown, the Walla Walla County coroner,
estimated that Rupe weighed between 260 and 270 pounds at the time
of his death. Brown will perform an autopsy Wednesday, and the
body will ultimately be released to Rupe's family.
Brown said there were no immediate signs of
Karil Klingbeil, Candace Hemmig's sister, said
Rupe's death closed a painful chapter in her family's life.
"I think there's a certain amount of closure
that it's over and that he's having to explain his behavior to a
much higher court than he's ever appeared in," Klingbeil, 70, said
from her home in Woodway north of Seattle. "He's going to have
some tough time explaining his deeds on this Earth."
Dorothy Payne of Olympia, Capron's mother-in-law,
called news of Rupe's death "wonderful."
"Nobody's going to miss Mitchell Rupe," she
said. "He's going to finally meet his justice."
She said family members visit Capron's grave in
nearby Tumwater every week. Payne turns 74 on Wednesday and said
news that Rupe had died was "the best birthday present anyone
could ever have given me."
"I know it sounds horrible. But if he ever once
said he was sorry or if he had ever shown any remorse instead of
sitting there gloating, maybe I'd feel different," Payne said.
Attorney Roger Hunko of Port Orchard, who also
represented Rupe, offered a different view.
"Mitch, when I represented him, was always a
gentleman, a very intelligent man," Hunko said. "He regretted what
he did that got him in trouble."
Rupe weighed more than 425 pounds — that's the
highest the scale went — when the federal judge ruled he was too
heavy to hang, Hunko said.
But that was not his normal weight, Hunko said.
Rupe's myriad physical problems had caused fluid to build up in
his body and dramatically increased his weight, the attorney said.
Doctors in Walla Walla performed emergency
surgery that allowed him to shed 150 pounds of fluid within a few
weeks, Hunko said. He eventually weighed about 275 pounds, 25 less
than when he entered prison, Hunko said.
As a result of the Rupe case, the Legislature
in 1996 changed the state's primary method of execution from
hanging to lethal injection, Hunko said.
101 Wn.2d 664, STATE v. RUPE
683 P.2d 571
The State of Washington, Respondent,
Edward Rupe, Appellant.
Causa number 48729-4
File Date June 7, 1984
NAMES OF CONCURRING OR
DISSENTING JUDGES: Williams, C.J., and Brachtenbach, J., concur in
the result only; Dolliver, Stafford, and Pearson, JJ., concur by
separate opinion; Utter, J., did not participate in the
disposition of this case.
NATURE OF ACTION: The defendant was
charged with aggravated first degree murder and first degree
robbery for killing two bank tellers and taking money from their
Superior Court: The Superior Court
for Thurston County, No. 81-1-00316-1, Hewitt A. Henry, J., on
June 7, 1983, entered a judgment on a verdict of guilty and a
sentence of death.
Supreme Court: Holding that the
trial was fair and did not violate due process or double jeopardy
guaranties, that evidentiary rulings were at most harmless error,
that the death penalty statute as applied was constitutional, and
that the instructions were proper, but that the admission of
evidence of the defendant's gun collection during the special
sentencing proceeding was prejudicial error, the court AFFIRMS the
conviction but REVERSES the sentence and REMANDS for a new special
COUNSEL: CLIFFORD F. CORDES III
(of CORDES, YOUNGLOVE & WYCKOFF), for appellant.
PATRICK D. SUTHERLAND, PROSECUTING
ATTORNEY, and GARY R. TABOR, CHIEF CRIMINAL DEPUTY, for respondent.
AUTHOR OF MAJORITY OPINION:
Rosellini, J. -
MAJORITY OPINION: This case comes to
us for direct review of defendant Mitchell E. Rupe's sentence of
death. Defendant was convicted of two counts of aggravated first
degree murder and two counts of first degree robbery.
By this appeal, defendant raises
multiple issues relating to his conviction and to his sentence.
The issues raised by defendant in respect to his conviction are:
1. Did the trial court abuse its
discretion by refusing to grant a change of venue?
2. Did the trial judge err in
admitting defendant's statements to police?
3. Do technical violations of RCW
9.73.090 require exclusions of defendant's taped statements to
4. Was defendant prejudiced by the
admission of the 911 tape, predeath photos of the victims or
5. Was defendant denied due process
by the exclusion of evidence regarding the results of the State's
chief witness' polygraph examination?
6. Do separate convictions for
robbery, where money is taken from areas under the control of two
different individuals, constitute double jeopardy?
7. Does due process require that the
State inform the defendant that identified witnesses may have
potentially exculpatory evidence when the witnesses' statements
have been released to defense counsel?
8. Did the prosecutor improperly
exceed the scope of cross examination?
9. Was the jury improperly allowed
to consider aggravating factors which were not supported by the
10. Was defendant denied due process
by the procedure of death qualifying the jury?
Defendant's challenges to his death
11. Is the capital punishment
statute, RCW 10.95, unconstitutional under our state constitution,
article 1, section 14, or the eighth and fourteenth amendments to
the United States Constitution?
12. Was the defendant prejudiced by
the improper admission of aggravating evidence?
13. Did the trial judge improperly
exclude mitigating evidence during the defendant's sentencing
14. Was the jury improperly
instructed during the sentencing phase?
15. Was the defendant prejudiced by
the trial judge's decision to allow jurors access to publicity
during the period between the guilt phase and the sentencing phase?
In addition to the above issues, RCW
10.95.130 requires that this court independently review
defendant's sentence of death.
We resolve these issues as follows:
1. We find that defendant was given
a fair trial and was not denied due process or subjected to double
jeopardy (issues 1, 5-8).
2. We find that the alleged errors
in admission of evidence did not prejudice defendant during the
guilt phase of his trial (issues 2-4). 3. We reject defendant's
challenge to the death penalty statute.
4. We find the defendant was denied
due process of law by the admission of evidence of his gun
collection during the sentencing phase.
5. We hold that the jury was
properly instructed during the sentencing phase.
We affirm defendant's convictions of
two counts of robbery and aggravated first degree murder but
remand for a new sentencing proceeding in accordance with this
Defendant received the sentence of
death for shooting and killing two bank tellers during the course
of a robbery. The victims, Candace Hemmig and Twila Capron, were
employed by Tumwater State Bank to staff its trailer branch in
West Olympia. The branch office consisted of a mobile home located
in a remote area near the Thurston County Courthouse. On the
morning of September 17, 1981, about a half dozen customers
transacted business with the bank between approximately 10:25 and
At 11 a.m. Michael Capron, Twila's
husband, arrived at the bank to take his wife to lunch. He walked
into the bank, looked around for his wife and Candy, but couldn't
see them. He then heard a rasping sound, approached the counter,
and spotted his wife and Candace lying on the floor. Capron
attempted to telephone for help by dialing zero, but nothing
happened. Another line was lit from an incoming call and Capron
punched into that line. Capron testified that he did not remember
exactly what he said but believes he said "Help" or "Get help,
this is Mike, the bank has been robbed, and Twila has been shot,
and I think Candy is dead". Report of Proceedings, at 205. The
person on the other line (later identified as Ann Marie
Gianoulakis) yelled back "Dial 911" and Capron did so.
When medics and the police arrived
on the scene, they determined that Candace was already dead and
that Twila could not survive the apparent massive injuries to her
The police secured the area and
began their investigation. Officer Jim Partin was posted outside
the bank. At approximately 11:40, Officer Partin was approached by
defendant who advised the officer that he had been at the bank
Within the bank,
police officers, gathering evidence, discovered defendant's
bloodstained checkbook lying open on the customer's side of the
During the next 5 days, defendant
was interviewed several times. On the day of the crime, September
17, defendant talked to police officers once at the scene (approximately
11:40 a.m.), and four times at work (at 2 p.m., 3 p.m., 6 p.m.,
and 11 p.m.). During these discussions defendant volunteered that
he was overdrawn at the bank. He stated that he went to the bank
both on the 16th and 17th to take care of the overdraft but was
unable to do so because each time he forgot materials needed to
resolve the problem. Defendant next was interviewed on the 18th,
and on the 20th he went to the police station and prepared an
identi-kit sketch of an individual he claimed to have seen at the
bank on the 17th.
On September 22, defendant went to
the police station to take a polygraph examination. Following the
polygraph, Officer Midthun informed defendant that due to the "sensitivity
of [his] voice, we have some very serious problems". Polygraph
transcript, at 34. After discussing the matter with Officer
Midthun, defendant admitted that he had committed the crimes.
Defendant subsequently gave three statements to police officers.
Searches of his vehicle netted ammunition of the type used in the
robbery/ murders. In addition, the police found a pair of white
pants, wet and soiled, in a vehicle used by defendant the weekend
after the murders.
Defendant's trial began with jury
selection on March 10, 1982. During voir dire, the judge allowed
counsel to question individual jurors, apart from the pool,
concerning their views regarding the death penalty. As no jurors
stated that they would be unable to impose the death penalty
regardless of the crime, none were excused because of their
beliefs concerning the death penalty.
The State's chief witness was Monte
Yovetich. Monte, a friend and fellow student of Rupe's at the time
of the murders, testified that on Tuesday, September 16, 1981, «1»
defendant to Olympia. Following a discussion about robbing the
Tumwater State Bank, Monte dropped defendant off near it and drove
to Olympia Technical Community College (OTCC). Defendant joined
him there shortly afterward, and confessed that he had gone into
the bank with his gun with the intention of robbing it but was
unable to do it. Monte next saw defendant on the 17th between 11
and noon. He testified that defendant told him that he had done it,
that he had robbed the bank and put the gun, money and green
satchel in Monte's garage.
According to Monte, he and his
friend Marlin Townsend looked for the gun and a green satchel and
put them in Marlin's car. Monte and Marlin drove toward Grapeview
and hid the money and gun. They returned to their respective homes,
but shortly thereafter, nervous about the other's honesty, they
went to look for each other. When they met up, they retrieved the
money and gun. They then dropped the gun off at the home of a
third friend, Skip (Carl) Grosskopf. From there they went to
dinner and to Marlin's parents' house. While with Marlin's parents,
they learned from the newspapers that two women had been shot
during the robbery. They retrieved the gun from Skip, took it to
the Hartstene Island bridge and threw it into the water. The
remaining money was hidden a second time.
Marlin Townsend's testimony
generally confirmed this sequence of events. Both Monte and Marlin
testified that they took money from the bag. Only slightly over
$2,100 of the $4,382 missing from the bank was eventually
Skip Grosskopf took the stand and
stated that Monte had dropped the gun off around 6 p.m. Skip
testified that the gun appeared to have been fired recently but
agreed to take it when Monte assured him that it wasn't "hot". An
hour and 10 minutes later, Monte returned for the gun. He appeared
"nervous, jittery". When asked why he wanted to pick up the gun so
soon, Monte stated that he (Skip) "didn't want to know." Report of
Proceedings, at 1308.
confessions were admitted at trial. In addition, three of
defendant's friends testified that defendant admitted involvement
in the crimes. «2»
At trial defendant
elected to testify and denied robbing the bank. On direct
examination by the State, defendant admitted that he had discussed
robbing the bank with Monte Yovetich and admitted that he had gone
to the bank on September 15, and that he intended to rob it. He
stated that he had Monte drop him off near the bank. He carried a
green satchel, which contained his gun, a .357 Colt Trooper.
Defendant testified that, while in the bank, he decided he
couldn't rob it. Consequently, he merely inquired about his
account and left.
Monte Yovetich, defendant alleged,
subsequently borrowed the .357 Colt Trooper in order to go hunting.
Two witnesses, David Schroeder and George Fullerton, testified
that defendant had discussed loaning the gun to Monte.
Defendant testified that he returned
to the bank on September 16 and 17.
Defendant, employed as a security
guard at OTCC, worked a double shift the evening of the 16th, and
got off work at 7 a.m. Thursday, the 17th. Between 7 and 10 a.m.,
he "hung around the school" waiting to get into the dental clinic.
About 10 o'clock, defendant decided that he was too tired to go to
the clinic and left. He stated that he was wearing white pants and
a blue shirt when he left OTCC. Following breakfast at the Hungry
Farmer, he went to the bank. He arrived around 10:30.
Defendant testified that while
transacting his own business, he saw a large motorcycle pull into
the bank's parking lot. Defendant claims that Monte Yovetich was
on the motorcycle, and that attached to the rear of the bike was
the green satchel in which he had given Monte his gun 2 days
before. Defendant asserts that this frightened him, because he
thought Monte was going to rob the bank. He alleges that he then
got into his truck and drove away. Both tellers, defendant claimed,
were alive when he left the bank.
Defendant testified that he next
went to Shelton and paid his storage bill with money that he had
in his pocket. The bill was for $280. Defendant paid $300. This
sum (and an additional $70) defendant stated was from his paycheck
cashed a few days before.
Defendant also tried to explain why
he had confessed. Defendant confessed, he stated, because he felt
responsible for Monte's act, since Monte used defendant's gun to
commit the crime. His testimony ended with a complete denial of
any personal involvement in the robberies or murders.
The defense called a psychologist,
Dr. Gerald McCarty. Dr. McCarty testified that he had diagnosed
defendant as having a schizotypal personality disorder which
affected his thought, reasoning and judgment processes. He
testified that defendant also had a secondary disorder known as
histrionic disorder. Dr. McCarty testified that these personality
disorders caused defendant to confess even though he did not
actually commit the crimes. Dr. McCarty testified that he did not
believe that defendant committed the crimes because his
confessions were vague and inconsistent with the physical evidence
at the scene.
In rebuttal, the State called two
medical witnesses. Both concluded that defendant did not have
The jury was instructed on two
counts of first degree robbery and two counts of first degree
aggravated murder. On April 29, 1982, after 2 days' deliberation,
the jury returned a verdict of guilty on all counts.
The sentencing phase of the trial
began on May 3, 1982. At that proceeding the defense moved to
exclude evidence relating to various weapons found in defendant's
home. The defense also moved to admit the evidence that Monte
Yovetich had failed his polygraph examination. (A similar offer of
proof was made during the guilt phase.) Both motions were denied.
At the conclusion of the proceeding, the jury was instructed:
" Having 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?
Instruction 2. Report of Proceedings,
at 2579. The jury concluded that there were insufficient
mitigating factors to justify leniency. After denying defendant's
motion for a new trial, Judge Henry sentenced defendant to death.
The case was then forwarded to this court for automatic review.
Defendant first attacks the trial
judge's failure to grant a change in venue.
 A motion for change in venue
should be granted when necessary to effectuate the defendant's due
process guaranty of a fair and impartial trial. SEE STATE v.
STILTNER, 80 Wn.2d 47, 491 P.2d 1043 (1971). The defendant need
only show a probability of unfairness or prejudice. SHEPPARD v.
MAXWELL, 384 U.S. 333, 16 L. Ed. 2d 600, 86 S. Ct. 1507 (1966).
The decision to grant or not grant a motion for venue is
discretionary. Courts are reluctant to disturb such a ruling,
however, absent a showing of abuse of discretion. STILTNER, at 52.
In the instant case, defendant
asserts that the trial judge abused his discretion. Citing STATE
v. CRUDUP, 11 Wn. App. 583, 524 P.2d 479 (1974), he argues that
the factors discussed therein support the proposition that the
trial judge should have granted a change of venue.
CRUDUP states that the following
criteria are to be considered: (1) the inflammatory or
noninflammatory nature of the publicity; (2) the degree to which
the publicity was circulated throughout the community; (3) the
length of time elapsed from the dissemination of the publicity to
the date of trial; (4) the care exercised and the difficulty
encountered in the selection of the jury; (5) the familiarity of
prospective or trial jurors with the publicity and the resultant
effect upon them; (6) the challenges exercised by the defendant in
selecting the jury, both peremptory and for cause; (7) the
connection of government officials with the release of publicity;
(8) the severity of the charge; and (9) the size of the area from
which the venire is drawn. CRUDUP, at 587.
Respondent also relies on CRUDUP but
applies its criteria differently to reach, of course, the contrary
Although the factors discussed in
CRUDUP may not be dispositive of every change of venue case, they
aid our inquiry here. Applying these factors then, and having
reviewed the materials submitted in support of defendant's change
of venue motion, we conclude that the trial judge did not abuse
his discretion. Although the publicity was widespread, it was
largely factual in nature. The articles described the crime, the
victims and the police investigation. The crime, rather than the
publicity itself, generated public reaction. Also, some time
passed between the crime (and its attendant publicity) and the
trial. Five months may not be characterized as a substantial time
period; still, it did aid in dulling the sharp reaction of the
community evident immediately thereafter. Furthermore, the
pretrial publicity did not make it overly difficult to obtain a
jury. There was a large pool of jurors (63,000) from which to
choose and no jurors questioned indicated a predisposition against
the defendant. Finally, the defendant did not use five available
peremptory challenges, presumably because he was satisfied with
the makeup of the jury.
On the other hand, the charges filed
in this case were the most severe the State could charge. On
balance, however, we find the trial judge did not abuse his
discretion in denying defendant's venue motion.
Issues 2 and 3 both deal with the
admissibility of certain statements defendant made to the police.
Generally, defendant argues that his confessions are inadmissible
because he was improperly advised of his constitutional rights,
because the statements were the result of coercive interrogation
and because the recording procedures used in taping the statements
violate the provisions of RCW 9.73. Each of the allegations will
be dealt with individually.
A. ADVISEMENT OF CONSTITUTIONAL
The procedural safeguards of MIRANDA
v. ARIZONA, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, 10
A.L.R.3d 974 (1966) are well known. Before an individual who has
been taken into custody can be questioned, he must be given this
basic advisement: He must be warned that he has the right to
remain silent, that anything he says can be used against him in a
court of law, that he has the right to an attorney, and that if he
cannot afford one, an attorney will be appointed for him prior to
any questioning. MIRANDA, at 479.
In the present case, defendant was
advised of his rights just prior to taking the polygraph
examination. The MIRANDA warnings were read to him and he was then
given a combined "Rights Warning Waiver Certificate" and "Polygraph
Examination Statement of Consent" form to sign. Plaintiff's
exhibit 1, Omnibus Hearing.
Defendant admits signing the waiver
but asserts that these warnings were insufficient to satisfy the
requirements of MIRANDA. He alleges first that the warnings were
inaccurate. Polygraph statements, he argues, cannot be admitted in
court absent a stipulation: if the defendant knew this fact, it
could have lured him into a false sense of security, making the
warnings ineffectual. Brief of Appellant, at 49. This argument is
without authority and without merit.
 An advisement of rights does not
purport to address intricate evidentiary questions. Furthermore,
defendant's position misstates the rules pertaining to
admissibility of polygraph examinations. As respondent points out,
it is the results of polygraph examinations, not statements made
during the examination, which are inadmissible. SEE WYRICK v.
FIELDS, 459 U.S. 42, 48 n.*, 74 L. Ed. 2d 214, 103 S. Ct. 394
 Defendant next asserts that the
advisement given prior to the polygraph examination was an
improper statement of Washington law and therefore inadequate. The
advisements defendant received stated that "[a]nything I say or
sign can be used against me." Plaintiff's exhibit 1, Omnibus
Hearing. Defendant asserts that the proper advisement, as
contained in STATE v. CREACH, 77 Wn.2d 194, 461 P.2d 329 (1969),
must inform the defendant that "any statement . . . CAN AND WILL
be used as evidence against him".
(Italics ours.) CREACH, at 199. We
are not persuaded by defendant's argument. Recently, the Supreme
Court also rejected the notion that MIRANDA warnings must follow,
word for word, the language of that opinion. In reversing a
California Court of Appeal decision, the Court stated that the
warnings need not be an incantation of the precise language
contained in MIRANDA. CALIFORNIA v. PRYSOCK, 453 U.S. 355, 69 L.
Ed. 2d 696, 101 S. Ct. 2806 (1981) (per curiam).
We agree with the reasoning of
PRYSOCK. The essence of the MIRANDA warnings is that the defendant
be advised of his rights in a way which conveys their full import.
Defendant received such warnings. The statement "anything you say
can be used against you" sufficiently alerts a defendant that his
statements may be used in court. Furthermore, the statement of
rights defendant received is identical with that contained in
MIRANDA. Consequently, we find that the statement of rights was
sufficient to adequately inform the defendant of his
constitutional rights. «3»
 Defendant next
asserts that the statements should be suppressed because he did
not sign a written waiver of his constitutional rights. This
argument was explicitly rejected in NORTH CAROLINA v. BUTLER, 441
U.S. 369, 373, 60 L. Ed. 2d 286, 99 S. Ct. 1755 (1979). There the
" An express written or oral
statement of waiver of the right to remain silent or of the right
to counsel is usually strong proof of the validity of that waiver,
but is not inevitably either necessary or sufficient to establish
waiver. The question is not one of form, but rather whether the
defendant in fact knowingly and voluntarily waived the rights
delineated in the MIRANDA case.
Here, the trial court specifically
found that defendant "made a knowing, intelligent, and voluntary
waiver of those [constitutional] rights". Conclusion of law 4.
Having reviewed the record, we agree. The testimony indicates that
defendant was generally aware of his legal rights but waived them.
Defendant was advised of his rights prior to the polygraph
examination, was asked if he understood them, and agreed to sign a
written waiver/ polygraph consent form. Following the polygraph
examination, defendant, after again being asked if he understood
his rights, confessed. «4»
We find that this
evidence supports the trial judge's conclusion that the defendant
knowingly waived his constitutional rights.
B. VOLUNTARINESS OF CONFESSION
Defendant alleges that his
confession was involuntary because it was brought about by
psychologically coercive police interrogation techniques. We
 To be voluntary, a confession
must be the product of a rational intellect and a free will.
MINCEY v. ARIZONA, 437 U.S. 385, 398, 57 L. Ed. 2d 290, 98 S. Ct.
2408 (1978). In determining voluntariness, the Court evaluates "all
the circumstances of the interrogation". MINCEY, at 401. The Court
has considered the physical condition of the defendant (MINCEY,
defendant wounded and in great pain); his mental abilities (DAVIS
v. NORTH CAROLINA, 384 U.S. 737, 16 L. Ed. 2d 895, 86 S. Ct. 1761
(1966) (low intelligence)); and the conduct of the police (SPANO
v. NEW YORK, 360 U.S. 315, 3 L. Ed. 2d 1265, 79 S. Ct. 1202 (1959)
(police used close friend to interrogate; informed defendant that
friend would lose job if no confession)); (DAVIS, police isolated
defendant for 16 days with minimal food).
Viewing the totality of the
circumstances, we conclude that defendant's confession was
voluntary. The police tactics employed were neither overly zealous
nor coercive. They consisted solely of psychological appeals to
defendant's conscience. Such appeals might result in an
involuntary confession where the defendant is in a weakened
physical or emotional state or of below normal intelligence.
Defendant here, however, did not have these handicaps. In fact,
the record indicates that defendant had been schooled in the art
of resisting coercive interrogation in conjunction with his
military training. It was unlikely, therefore, that his will was
overborne by Officer Midthun's rather elementary interrogation
 Despite these facts, defendant
apparently would have this court adopt a rule that interrogations
by polygraphists are inherently coercive. To support this novel
proposition, he cites several cases, including PEOPLE v. ZIMMER,
68 Misc. 2d 1067, 329 N.Y.S.2d 17, AFF'D, 339 N.Y.S.2d 671 (1972);
STATE v. GREEN, 271 Or. 153, 531 P.2d 245 (1975); and UNITED
STATES EX REL. MONKS v. WARDEN, N.J. STATE PRISON, 339 F. Supp. 30
(D.N.J.), AFF'D, 474 F.2d 1337 (3d Cir. 1972). Defendant's
authority does not support this proposition. In ZIMMER, the
defendant was given a polygraph examination 2 days after her
infant daughter's death. Pursuant to an investigation of the
child's death, the defendant agreed to the polygraph examination.
During the examination, the defendant was "obviously emotionally
upset." ZIMMER, at 1070. A psychiatrist who examined Ms. Zimmer
the day following her confession concluded that the statement was
coerced and that she was not possessed of "a free and voluntary
state of mind, and was not in conscious control of herself at the
time the statement was taken." ZIMMER, at 1071. In the present
case, defendant can show no similar emotional distress or
intellectual impairment. Similarly, the case of UNITED STATES EX
REL. MONKS v. WARDEN, N.J. STATE PRISON, SUPRA, is unlike the
facts here. There, the defendant, a boy of 15, was held 8 days and
subjected to repeated interrogations, including nine lie detector
tests. No comparable police conduct is alleged in the present
In summary, then, we believe that
the defendant's statements were the product of his own free will
and thus admissible at trial.
C. RCW 9.73 VIOLATIONS
Defendant's final attack on the
admissibility of his statements concerns various violations of RCW
9.73. That chapter circumscribes the use of tape recordings and
requires that specific protections accompany the recording of
statements made by arrested persons. The statute allows police to
tape statements of arrestees if (1) the arrested person has been
informed that the statement is being taped and the statement so
informing him is included on the tape; (2) the tape contains an
indication of the starting time and the termination time; and (3)
the person has been fully informed, on tape, of his constitutional
rights. RCW 9.73.090(1)(b).
In STATE v. CUNNINGHAM, 93 Wn.2d
823, 613 P.2d 1139 (1980), we indicated that recordings must
strictly conform to the statutes so as to "ensure that waiver by
consent authorized by RCW 9.73.030 is capable of proof by the
recording itself". CUNNINGHAM, at 829. The court found that it was
error (albeit harmless) to allow tapes into evidence which did not
contain a starting time nor a full statement of the defendants'
constitutional rights. CUNNINGHAM, at 830.
In STATE v. JONES, 95 Wn.2d 616, 628
P.2d 472 (1981), we again interpreted RCW 9.73.090. In JONES, we
found that the statute was not violated even though the tape did
not contain the required statement that a recording was being
made. In coming to that conclusion, this court looked to the
circumstances surrounding the taping. The evidence there
demonstrated that the police officer had made statements regarding
the taping of the conversations. In addition, the tape recorder
was sitting on the table directly in front of the defendant. Under
these facts, we agreed that the defendant knew the statements were
being recorded. We concluded, therefore, that the tape recording
conformed to the statute. JONES, at 627.
We believe a similar analysis should
be applied here in reviewing each of the five separate statements
Defendant's initial statement was
taken on the day of the crime, September 17, 1981. As defendant
was not in custody at the time, the police were required to comply
with the terms of RCW 9.73.030 rather than 9.73.090.
That statute requires that all
parties to a taped conversation give their consent to the taping.
The tape must also contain a statement that the conversation is
being recorded. RCW 9.73.030(3). The statement of September 17,
1981, does not comply with this requirement. Nowhere on the tape
does the fact of its being taped appear. Thus, we find that this
statement violated the terms of the statute. RCW 9.73.050 provides
that information obtained in violation of this statute is not
admissible in any civil or criminal proceeding. Thus, the
admission of evidence obtained from this taped statement was
Having found a violation of the
statute, we still must determine whether use of the taped
statement resulted in prejudicial error.
 In STATE v. CUNNINGHAM, SUPRA,
we held that errors in admitting such evidence are
nonconstitutional errors subject to the standard of "reasonable
probabilities." CUNNINGHAM, at 831, states the complete formula:
"It was a statutory violation.
Accordingly, the stringent standard of proving "harmless error
beyond a reasonable doubt" is inapplicable. STATE v. NIST, 77 Wn.2d
227, 461 P.2d 322 (1969). We apply instead the rule that error is
not prejudicial unless, within reasonable probabilities, had the
error not occurred, the outcome of the trial would have been
We believe the admission of Officer
Mauer's testimony concerning defendant's statement did not
prejudice the defendant because the statement did not contain any
directly incriminating evidence. The statement simply illustrated
that there were inconsistencies in defendant's initial statements
to police. Furthermore, these same inconsistencies were revealed
in later, nontainted conversations with police on the same day.
remaining evidence at trial clearly supports the proposition that
the result was not materially affected by admission of this
Defendant next attacks the admission
of statements made during and immediately following his polygraph
examination. He asserts that RCW 9.73.050 prohibits use of
information obtained during the examination (and subsequent
interview) because the tape does not contain an advisement of the
fact that it is being recorded or consent to the recording as
required by RCW 9.73.030. Defendant's argument is without merit.
The tape in question does contain the requisite advisement. Prior
to beginning the polygraph examination, Officer Midthun advised
defendant of his constitutional rights and read him the consent
form for the polygraph examination. The consent form states quite
clearly that the "examination will be monitored or recorded."
Plaintiff's exhibit 11, at 3, Omnibus Hearing. Although
defendant's consent to have the statement taped does not appear
therein, this is not required by RCW 9.73.030. The statute
"consent shall be considered
obtained whenever one party has announced to all other parties . .
. that such communication or conversation is about to be recorded
PROVIDED, That if the conversation
is to be recorded that said announcement shall also be recorded.
RCW 9.73.030(3). As the requisite
announcement was made, the statute was not violated.
A different problem arises from the
taping of defendant's next statement. Following the polygraph
examination, Officer Midthun informed defendant of his belief that
he was either involved in the crimes or had knowledge of them.
Finding of fact 58. Defendant, after first denying knowledge or
involvement in the crimes, said he thought a friend had done it
and then admitted that he had done it. He then briefly gave the
details of the crimes. Finding of fact 60.
Officer Midthun asked defendant if
he would talk to Detective Shultz. Defendant agreed and Detective
Shultz changed places with Officer Midthun. During the subsequent
taped interview, defendant described the events leading to the
deaths of the two bank tellers. It is this statement which
defendant contends violates RCW 9.73.090.
RCW 9.73.090, unlike RCW 9.73.030,
applies specifically to individuals who have been arrested. To
apply this statute, we must resolve whether defendant was arrested
at the time he gave this statement to Detective Shultz.
 The classic definition of arrest
consists of "'. . . the apprehending or restraining of one's
person, in order to be forthcoming to answer an alleged or
suspected crime.'" E. Fisher, ARREST 7 (1967) (quoting 4 W.
Blackstone, COMMENTARIES *288, *289). The necessary first step in
determining whether there has been an arrest is to ask whether the
individual was free to leave the presence of the police. 2 W.
LaFave, SEARCH AND SEIZURE 5.1(a) (1978).
A second element of arrest is the
likelihood that the present confinement will be accompanied by
future interference with the individual's freedom of movement.
TERRY v. OHIO, 392 U.S. 1, 26, 20 L. Ed. 2d 889, 88 S. Ct. 1868
(1968). This element reflects the common law notion that an arrest
is more than a present confinement. To be an arrest, confinement
should simply be the initial action in criminal prosecutions.
We conclude that defendant was
arrested for purposes of this statute immediately upon confessing
to the crimes. The combination of defendant's confession and the
mounting circumstantial evidence against him (E.G., inconsistent
statements to police about apparel, presence of blood-spattered
checkbook at scene, and admitted financial difficulties) were
sufficient evidence to establish probable cause to prevent
defendant from leaving the police station. This, in fact, was the
conclusion reached by the trial judge. See finding of fact 60.
The notion of present confinement
for future accountability is also present in defendant's case.
Once he admitted guilt to a specific crime, defendant set in
motion a chain of events leading inevitably to his confinement for
Having concluded that defendant was
under arrest, it follows that RCW 9.73.090 applies to defendant's
statement to Detective Shultz. We must now decide whether that
statement conforms to the terms of the statute. We hold that it
As previously noted, the statement
at issue followed immediately after the conversation with Officer
Midthun. The trial judge found that between these two statements,
approximately 1 minute elapsed. Officer Midthun left the room and
Detective Shultz arrived immediately. This short period of time
leads us to conclude that the interrogations were one transaction.
Thus, for purposes of evaluating whether the terms of RCW 9.73.090
have been complied with, we view the two statements as one.
 Taken together, the only defect
in the taping procedure of these statements was the failure to
specify the starting time of the polygraph examination. All of the
other requirements were met. The polygraph statement was preceded
by an advisement of defendant's constitutional rights and a
notification of the fact that the statement was being taped. When
Detective Shultz came into the room, defendant was reminded of his
rights and asked whether he understood them. He responded in the
affirmative. He was told again that the statement was being taped
and at the tape's conclusion, the detective announced that the
tape ended at a specific time. These procedures substantially
comply with the statute and provide the necessary safeguards
intended by the statute. The resulting information was therefore
challenges a statement made during the evening of September 22,
1981, and one given early the next morning. These tapes contain
the following violations of RCW 9.73.090. The tape taken during
the evening of September 22 contains no statement of its starting
time, and no statement that the interview was being taped.
The statement taken early the next
day does not contain a statement of defendant's rights, although
it does have a reference to the rights having been read. Thus,
neither of these statements complies with the terms of the statute.
We find, however, that defendant was not prejudiced by their
admission. As discussed elsewhere in this opinion, the evidence of
guilt was overwhelming. In addition, the critical information
contained in these two statements was largely cumulative of that
obtained in the previous interviews. Under these facts, we do not
believe defendant was prejudiced by use of the tapes.
Our next inquiry is whether
defendant's trial was tainted by the admission of improper
prejudicial evidence. Defendant alleges several errors, each of
which will be dealt with separately. Before reaching these issues,
however, an initial discussion of our evidence rules is needed.
 Admissibility of evidence is
determined, generally, by Rules of Evidence 401, 402 and 403. ER
401 defines relevant evidence as evidence "having any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it
would be without the evidence." ER 402 states simply that relevant
evidence is admissible. ER 403, on the other hand, allows relevant
evidence to be excluded "if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury". Unfair prejudice is that which
suggests decision on an improper basis, commonly, though not
necessarily, an emotional one. Fed. R. Evid. 403, Notes of
Advisory Committee on Proposed Rules. These rules, in effect,
require that the trial judge carefully balance the evidence's
relevancy against its prejudice. Normally, the trial judge's
decision will not be overturned absent a showing of abuse of
discretion. SEE STATE v. CRENSHAW, 98 Wn.2d 789, 659 P.2d 488
(1983) (admission of photographs within judge's discretion).
A. ADMISSION OF 911 TAPE
Defendant first attacks the
admissibility of the taped conversation between Michael Capron and
the county dispatcher. The tape illustrates the highly distraught
response of a husband upon first finding his wife lying in a pool
of her own blood. It is, without a doubt, an extremely emotional
experience to listen to this tape. The court has done so. We
conclude that notwithstanding its strong emotional appeal, the
trial judge did not abuse his discretion in admitting the tape
during the guilt phase.
Defendant asserts that this evidence
was inadmissible because its prejudice far outweighed whatever
relevancy it might have possessed. The State counters with the
argument that the tape was highly relevant to rebut defense
counsel's suggestion, during opening statement, that Michael
Capron was responsible for the crimes. In his reply brief, defense
counsel denies making accusatory statements concerning Michael
Capron. The statements referred to by the State appear below:
" So she [Ann Marie Gianoulakis]
calls the bank.
She's known Candy Hemmig
professionally, had professional dealings with her at the bank.
She calls the bank. This is the same phone call that the state
says they will prove Mike Capron answered, and immediately started
screaming into the phone.
The phone is picked up at the other
end, at the bank. Mrs. Gianoulakis doesn't hear what she expects
to hear. She didn't hear: Hello, this is the Tumwater State Bank.
What her immediate reaction was is a
bunch of women arguing. She hears more than one person. It's a
bunch of women arguing. That is what her reaction was to the
She's about to hang up, because she
thinks she's got the wrong number. She listens for a few moments,
and all she hears is this background, not somebody talking into
the receiver, this background argument.
She is about to hang up when she
hears not: This is Mike. Twila's been shot, but: This is Candy.
Mike's been shot. Telephone call ends.
The important thing to remember
about that is the arguing, and at that time Mrs. Gianoulakis
She wasn't upset. She was making a
normal phone call, and this is what she heard.
That is the state's case. They will
PRESENT EVIDENCE THAT THAT PHONE CALL WAS RECEIVED IN THE BANK,
MIKE CAPRON WAS THE ONLY ONE ALIVE IN THE BANK, OR AT LEAST THE
ONLY ONE THAT COULD TALK. Who was arguing in the background.
(Italics ours.) Report of
Proceedings, at 47-48.
We agree with the State that this
passage suggests a defense theory that Michael Capron was
responsible for the murders. We agree also that the tape was
relevant to rebut this inference. Turning to the second step,
whether the evidence's prejudice outweighed its probative value,
we conclude it did not. The tape, though extremely emotional, did
not implicate defendant but rather directed sympathy to the
victims. Under these circumstances, we believe the trial judge did
not abuse his discretion in admitting the tape.
On the other hand, the emotional
impact of this tape may have a prejudicial effect on the penalty
phase of the trial. To guard against prejudice, the tape should
not be played to the jury during the new sentencing proceeding.
B. PREDEATH PHOTOGRAPHS
We reach a similar conclusion on the
admission of the victims' photographs. Defendant urges that
photographs taken of the victims before the incident were
irrelevant and prejudicial.
The State counters with the argument
the photographs were relevant to establish the identity of the
victims. We need not resolve this issue, however, because we
believe any error would be harmless. The photographs are not of
the type which generate prejudice or an emotional reaction against
defendant. Finally, as noted above, the overwhelming evidence of
guilt satisfies us that the jury verdict was not affected by the
admission of this evidence. As the question of identity is not in
issue at a sentencing hearing, the pictures should not be admitted
in the subsequent proceeding.
C. HEARSAY STATEMENTS
The next evidentiary error alleged
in this case relates to the testimony of two individuals who saw
defendant at a conference the weekend following the murders.
Officer Dale W. Mattson, a deputy sheriff for Mason County,
testified that he had a conversation with defendant. Mattson told
defendant that he resembled the police description of a suspect in
the murders. Officer Mattson then testified to Rupe's reaction. He
stated that "[h]e [defendant] stammered a bit. I felt I offended
him." Report of Proceedings, at 1352. Another law enforcement
officer, who was also present during this conversation, testified
that defendant stammered and looked surprised when informed of the
Defendant makes two arguments in
support of his position that this evidence is inadmissible.
He contends first that the evidence
is irrelevant. We disagree. Defendant's apparent embarrassment
when told that he resembled a murderer is relevant, as the
evidence has some tendency to increase the probability of
defendant's guilt. It is unlikely that an innocent party would
react in such a way.
Defendant next argues that the
evidence was inadmissible hearsay. This argument is without merit.
Hearsay is an out-of court statement offered to prove the truth of
the matter asserted. ER 801(c). This evidence was not offered to
prove the truth of the matter asserted and thus was not hearsay.
Furthermore, the evidence also would be excepted from the hearsay
rule as an admission by the defendant. SEE ER 801(d)(1)(i).
Defendant raises several due process
issues. He argues first that he was denied due process by the
trial judge's decision to exclude the results of Monte Yovetich's
polygraph examination. Monte Yovetich was a key witness in the
State's case. He linked the money and gun to defendant. Also, many
of the facts are consistent with two theories- either that
defendant committed the crimes or that Monte Yovetich did. Monte
Yovetich failed his polygraph examination but the trial judge
refused to admit the test results absent a stipulation. Defendant
attacks the exclusion of this evidence, arguing that it denied him
due process. He urges that these results were relevant because
Yovetich's failure of the test cast suspicion on his story and the
State's version of the day's events. Although the evidence may
have been relevant, we cannot agree with defendant's assertion
that this relevancy required the trial judge to admit the test's
Defendant starts, as does the
prosecution, with the general rule that polygraph examinations are
inadmissible in this state absent stipulation. STATE v. RENFRO, 96
Wn.2d 902, 905, 639 P.2d 737, CERT. DENIED, 459 U.S. 842 (1982);
STATE v. YOUNG, 89 Wn.2d 613, 574 P.2d 1171, CERT. DENIED, 439 U.S.
870 (1978); STATE v. WOO, 84 Wn.2d 472, 527 P.2d 271 (1974).
Defendant distinguishes these cases by noting that his case,
unlike those cited, raises a Sixth Amendment issue concerning his
right to confront witnesses and produce evidence in his favor.
 Under the facts
of this case, we are not persuaded that defendant's right to
present evidence in his favor has been unfairly circumscribed. The
United States Supreme Court, in commenting on the importance of
the Sixth Amendment right to present witnesses, recognized the
right's principal limitation - that of reliability.
"In the exercise of this [Sixth
Amendment] right, the accused . . . must comply with established
rules of procedure and evidence designed to assure both fairness
and reliability in the ascertainment of guilt and innocence.
CHAMBERS v. MISSISSIPPI, 410 U.S.
284, 302, 35 L. Ed. 2d 297, 93 S. Ct. 1038 (1973).
The evidence offered by the
defendant simply does not reach the minimal threshold of
reliability necessary to its admission in a criminal proceeding.
In addition to the questionable reliability of polygraph
examinations, the present polygraph examination has other
trustworthiness problems. The polygraphist concluded, during
defendant's offer of proof, that he doubted the test's validity.
He cited Monte Yovetich's lack of sleep, hostility to the police
and nervousness as factors which possibly affected the test
Moreover, the results of the
polygraph examination were further undercut by subsequent events.
The polygraph charts indicate that Yovetich was lying when he
answered the following question: "Did you lie when you said you
threw the gun off the Hartstene Island bridge?" In response to
this question, Monte said "no". The polygraph results showed that
Monte was lying when he answered this question, but subsequent
events suggest that he was telling the truth. For instance, the
gun was located precisely where Yovetich stated he had thrown it.
Combined, this fact and the polygraphist's testimony convince us
that defendant's Sixth Amendment rights were not violated by
exclusion of the evidence.
 Our resolution of this issue
also disposes of issue 12 concerning the admission of the
polygraph examination during the sentencing phase of defendant's
trial. Although we recognize that death sentencing proceedings
involve interests that require more relaxed evidentiary rules when
considering evidence in defendant's favor, we cannot go so far as
to permit clearly unreliable evidence to be introduced. We hold,
therefore, that polygraph examinations will not be admitted in
those limited cases where their trustworthiness is seriously in
doubt. CF. STATE v. BARTHOLOMEW, 101 Wn.2d 631, 683 P.2d 1079
(1984) (BARTHOLOMEW II).
B. EXCULPATORY EVIDENCE
Turning to the next due process
claim, defendant argues that he is entitled to a new trial because
the prosecutor failed to disclose exculpatory evidence - the
statements of one Donna Wright. Mrs. Wright, when interviewed on
the day of the murders, indicated that she saw a dark blue Bronco
vehicle leaving the bank parking lot between 11 and 11:10 a.m. See
Brief of Appellant, apps. A, B. This statement was provided to the
defendant prior to trial. It simply was not flagged as "exculpatory"
evidence. We disagree with defendant's conclusion that this
omission denied him due process. By turning over the names and the
statements, the State complied with its obligation.
C. PROSECUTORIAL MISCONDUCT
 Defendant's final attacks on
his conviction implicate the conduct of the prosecuting attorney.
Defendant asserts that the prosecutor exceeded the scope of proper
cross examination by inquiring as to his experience as a security
officer in the army. Generally, questions concerning the scope of
cross examination are left to the sound discretion of the trial
judge. STATE v. JEANE, 35 Wn.2d 423, 431, 321 P.2d 633 (1950).
Here, we conclude the trial judge did not abuse his discretion.
The record indicates that defense counsel initially inquired into
defendant's background and experiences. This line of questioning
opened the door for questions concerning defendant's other work
experience. We find no abuse of discretion in allowing this cross
Finally, defendant urges that he
also was deprived of due process of law by the prosecutor's
questions during cross examination.
Defendant contends that the
prosecutor improperly inquired as to whether defendant had
informed anyone, previous to trial, of his belief that Monte
Yovetich had committed the crime. Defendant argues that he was
prevented from giving a complete answer to this question.
Defendant's only previous reference to someone else committing the
crime was made during the polygraph examination. He argues that
the inadmissibility of the polygraph examination thus compelled
him to answer the question in the negative. He contends the
prosecutor deliberately made this reference, knowing that
defendant would have to deny that he previously accused Monte.
This argument is without merit.
First, defendant could have answered the question affirmatively
without referring to the polygraph examination. Second, if defense
counsel believed that his client incorrectly felt that he could
not refer to the version of his story given after the polygraph
examination, he could have rehabilitated his witness on redirect
examination. He did not. This incident did not deny defendant a
Defendant next brings a
constitutional challenge to his robbery convictions. He asserts
that he was placed in double jeopardy by his conviction on two
counts of robbery.
As to the first contention, we
believe defendant's multiple convictions for robbery are valid.
RCW 9A.56.190 defines robbery as the unlawful taking of personal
property from the person of another, or in his presence against
his will by the use or threatened use of immediate force, violence
or fear of injury to that person or his property or the person or
property of anyone.
 Defendant argues that since the
money was owned by the bank, only one robbery occurred, even
though the money was taken from the possession of two different
individuals. We disagree. The robbery has several distinct
elements: the taking of the personal property and the use or
threat to use force on an individual. The statute does not require
that the person from whom the property is taken own that property.
Possession or custody will suffice. Here, each teller was
individually responsible for money in her till. Each had control
and possession of that money and each had the money taken by the
use of force. These facts constitute two separate robberies and
the double convictions do not place defendant in double jeopardy.
SEE WATKINS v. STATE, 413 So. 2d 1275 (Fla. Dist. Ct. App. 1982).
Defendant next asserts that there
was no evidence to support two of the three statutory aggravating
factors on which the jury was instructed. The jury was instructed
that it should consider whether the murders were committed to
conceal the identity of defendant; whether the crime involved
multiple victims who were killed pursuant to a common scheme or
plan; and whether the murders occurred during the course of a
Defendant admits that the murders
occurred during the course of a robbery but asserts that there is
no evidence that the murders were committed to conceal the
identity of the murderer or that the murders were part of a common
scheme or plan. We disagree. The State presented evidence that
defendant was well known to the victims. Defendant acknowledges
that he had conducted business at the Tumwater State Bank for
several months. Moreover, defendant testified that he had been in
the bank several times the week of the crime. From this evidence,
the jury could infer that defendant planned to murder both tellers
in order to avoid detection. This evidence is sufficient to
establish both statutory aggravating factors challenged by
defendant. The jury was entitled to believe that no one would
enter a bank where he was well known, intending only to rob it,
thereby leaving two witnesses who could identify him and provide
police with information, such as his name and address, which would
lead inevitably to his arrest. The evidence that defendant was
well known at the bank was thus sufficient circumstantial evidence,
under the facts of this case, for the jury to conclude that
defendant intended to kill both tellers to conceal the crime.
Defendant challenges the composition
of the jury and the process by which it was selected. Relying on
WITHERSPOON v. ILLINOIS, 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct.
1770 (1968) and HOVEY v. SUPERIOR COURT, 28 Cal. 3d 1, 616 P.2d
1301, 168 Cal. Rptr. 128 (1980), defendant moved, prior to trial,
to prohibit the State from questioning the members of the jury
panel about their views on capital punishment. This motion was
denied. During voir dire, the panel was questioned individually,
while the remaining panel members were secluded and asked whether
they could impose the death penalty.
Although the State challenged
several jurors, none were excused on the ground that they could
not impose the death penalty. Several jurors were excused, however,
when they voiced opinions that reflected too great a willingness
to impose death sentences. Despite these precautions, defendant
asserts that the process of death qualifying a jury denied him due
process of law.
The landmark case on this issue is
WITHERSPOON v. ILLINOIS, SUPRA. In WITHERSPOON, the defendant was
convicted of murder and sentenced to die by a jury from which the
prosecutor had removed for cause all prospective jurors who had "conscientious
scruples against capital punishment, or [were] opposed to the same.'"
WITHERSPOON, at 512. On appeal, the defendant urged that the jury
was unconstitutionally biased in favor of both conviction and
The Supreme Court reversed
Witherspoon's death sentence but upheld the underlying murder
conviction. Concerning the penalty imposed, the Court held it "self-evident"
that if prospective jurors are excused for cause based on general
objections to the death penalty or conscientious or religious
scruples, the resulting jury "cannot speak for the community" and
is "uncommonly willing to condemn a man to die." WITHERSPOON, at
520, 521. The only prospective jurors who could constitutionally
be excused for cause were
"those who made unmistakably clear
(1) that they would AUTOMATICALLY vote against the imposition of
capital punishment without regard to any evidence that might be
developed at the trial of the case before them, or (2) that their
attitude toward the death penalty would prevent them from making
an impartial decision as to the defendant's GUILT.
WITHERSPOON, at 522 n.21.
The Court refused to reverse
Witherspoon's conviction for murder. It found the empirical
studies tendered on his behalf "too tentative and fragmentary" to
establish that the broad exclusion of "death scrupled" jurors "results
in an unrepresentative jury on the issue of guilt or substantially
increases the risk of conviction." WITHERSPOON, at 517, 518.
Witherspoon had specifically declined to present evidence below to
support his contention. The Court found, therefore, that it could
only speculate as to the precise meaning of terms used in the
studies, the accuracy of the techniques employed, and the validity
of the generalizations made. Nevertheless, the Court left the
question open for some future defendant to attempt to establish
that "death qualification" results in a jury which is less than
neutral with respect to guilt. WITHERSPOON, at 520 n.18.
Prior to trial, defendant here
submitted several studies that attempt to establish the
proposition that jury panels from which jurors who oppose the
death penalty are excluded, are conviction prone. In addition, he
moved for a continuance in order to obtain the results of a new
study on the topic. This motion was denied.
On appeal, defendant asserts the
trial judge erred in not granting either the motion to prohibit
death qualification or the motion for a continuance. The State
responds by pointing out that the studies cited by defendant all
attempt to establish that only the exclusion of jurors opposed to
the death penalty results in a conviction-prone jury. From this
fact, the State reasons that the cited studies are inapplicable to
defendant's case, since no jurors were excused due to their views
concerning the death penalty. We agree.
 WITHERSPOON and its progeny
insure that a cross section of the community is obtained by
allowing jurors who have capital scruples to serve on the panel.
Two such jurors served on this panel. See Voir Dire Report of
Proceedings, at 310-13, 434. The fact that no jurors who
absolutely opposed the death penalty served was the combined
result of the random selection process and the State's exercise of
peremptory challenges. Defendant thus cannot, on this record,
prove that the jury panel was not a fair cross section of the
 Defendant's next argument
attacks the PROCESS of death qualification. Relying on HOVEY v.
SUPERIOR COURT, SUPRA, he alleges in essence that when a jury is
questioned about the death penalty, it forms a predisposition to
convict. Defendant offers no evidence to substantiate this
allegation. Furthermore, his reliance on HOVEY is misplaced. In
HOVEY, the defendant presented evidence which demonstrated that
the process of questioning a jury about capital punishment
predisposed the panel to conviction. The California court
recognized the dangers of death qualification. It concluded,
however, that the risk of taint would be sufficiently minimized by
individual questioning apart from the jury panel. Where, as here,
jurors are questioned individually and the trial judge and counsel
each carefully emphasize, to prospective jurors, that they may not
draw inferences of guilt from the questioning, we believe the
possibility of tainting the jury is so minimal that the procedures
satisfy due process. We conclude, therefore, that defendant was
not denied due process by the death qualification procedure.
We turn now to defendant's argument
concerning his death sentence. Defendant initially attacks the
constitutional validity of the death penalty statute, RCW 10.95.
He then argues that the trial judge erred in admitting certain
aggravating evidence and in instructing the jury. Finally, he
argues that his sentence cannot survive review by this court under
the terms of RCW 10.95.130. We reject defendant's challenges to
the death penalty statute, but do not reach the issue of statutory
review for the reasons set out below.
Defendant raises several
constitutional challenges to the death penalty statute. He first
argues that the death penalty is per se unconstitutional.
Defendant admits that the United States Supreme Court has rejected
the argument that capital punishment is a per se violation of the
United States Constitution (GREGG v. GEORGIA, 428 U.S. 153, 49 L.
Ed. 2d 859, 96 S. Ct. 2909 (1976)) but urges that this court
should find the death penalty per se unconstitutional under our
state constitution, Const. art. 1, 3, 14. As defendant correctly
points out, this argument was not raised in STATE v. BARTHOLOMEW,
98 Wn.2d 173, 180, 654 P.2d 1170 (1982) (BARTHOLOMEW I).
 Defendant offers the following
arguments in support of his position. First, the killing of
another human being is undoubtedly cruel. Second, the State has
not shown that the death penalty has a deterrent effect on others.
Third, any death penalty statute will be arbitrary and capricious
because it cannot be applied evenly to those who commit similar
criminal acts. The defendant then cites PEOPLE v. ANDERSON, 6 Cal.
3d 628, 493 P.2d 880, 100 Cal. Rptr. 152 (1972) in which the
California court ruled that the state's constitution did indeed
prohibit the death penalty. «7»
were addressed by the Supreme Court in GREGG, and we find that
analysis equally applicable here. Defendant does not offer any
persuasive reasons why our state constitution requires a different
resolution of these issues.
In addition, although BARTHOLOMEW I
did not address itself to the per se argument, we certainly were
aware of our power to do so when that case was decided. Thus, our
decision in BARTHOLOMEW I implicitly rejects defendant's argument.
believe that to hold that the death penalty is per se
unconstitutional would be to substitute our moral judgment for
that of the people of Washington. We, like the court in GREGG,
"the constitutional test is
intertwined with an assessment of contemporary standards and the
legislative judgment weighs heavily in ascertaining such standards.
"[I]n a democratic society legislatures, not courts, are
constituted to respond to the will and consequently the moral
values of the people." FURMAN v. GEORGIA, [408 U.S. 238 (1972)] at
383 (Burger, C. J., dissenting).
GREGG, at 175-76. Consequently, we
reach a similar conclusion under our state constitution as the
United States Supreme Court reached in GREGG and hold that our
state provision does not prohibit the imposition of the death
penalty in all cases. So long as the sentencing procedures
sufficiently protect against juries imposing the death penalty in
an arbitrary manner, the death penalty is not per se
Defendant next asserts that our
statute does not adequately guard against arbitrary infliction of
the death penalty. As most of defendant's arguments were raised
and rejected in BARTHOLOMEW I, our discussion here will be
Defendant first contends that under
Washington's statute the jury is given excessive discretion as to
which persons who are convicted of aggravated murder in the first
degree will be put to death. We disagree. The United States
Supreme Court has required that any death penalty statute meet the
"[I]f a State wishes to authorize
capital punishment it has a constitutional responsibility to
tailor and apply its law in a manner that avoids the arbitrary and
capricious infliction of the death penalty. Part of a State's
responsibility in this regard is to define the crimes for which
death may be the sentence in a way that obviates "standardless [sentencing]
discretion." It must channel the sentencer's discretion by "clear
and objective standards" that provide
"specific and detailed guidance,"
and that "make rationally reviewable the process for imposing a
sentence of death."
BARTHOLOMEW I, at 189 (quoting
GODFREY v. GEORGIA, 446 U.S. 420, 428, 64 L. Ed. 2d 398, 100 S. Ct.
1759 (1980)). In BARTHOLOMEW I, we compared our statute to this
standard and concluded that the Washington procedures conform in
broad outline to those schemes already approved by the United
States Supreme Court. BARTHOLOMEW I, at 192. Defendant offers no
new analysis as to why we should change our holding in BARTHOLOMEW
 Defendant also argues that the
statute is unconstitutional because it allows prosecutorial
discretion in the decision to seek the death penalty. This
argument was rejected by several of the opinions in GREGG v.
GEORGIA, SUPRA. Justice Stewart commented, in a footnote, that the
argument placed unrealistic and unconstitutional limitations on
the legal system. GREGG, at 199 n.50. We agree. Moreover, as
Justice White explained in his concurrence in GREGG, the grant of
discretion to prosecutors does not result in a standardless death
penalty statute. The courts may assume that prosecutors exercise
their discretion in a manner which reflects their judgment
concerning the seriousness of the crime or insufficiency of the
evidence. Consequently, the prosecutor's decision not to seek the
death penalty, in a given case, eliminates only those cases in
which juries could not have imposed the death penalty. We believe
that this analysis accurately portrays the function prosecutorial
discretion plays in our death penalty statute. This discretion is
As a third prong in his argument
that the statute allows arbitrary infliction of the death penalty,
defendant contends that the review procedures set out in RCW
10.95.130 are inadequate to guard against the arbitrary infliction
of the death penalty. As discussed in BARTHOLOMEW I, at 191-92,
the statutory provisions for review are quite broad and certainly
pass constitutional challenge.
Defendant's next argument concerning
the statute is that RCW 10.95 is inadequate to protect against
arbitrary infliction of the death penalty because the jury is not
required to be either unanimous in finding aggravating factors or
to specify which factors it found. The State, on the other hand,
argues that in practice, juries have been required to answer a
special interrogatory, setting out the factors which they agreed
upon. Furthermore, unanimity was required in the instant case. We
find that in defendant's case the statute was applied in a
We now turn to defendant's argument
that the burden of proving the existence of mitigating
circumstances was improperly placed on him. He urges that the
death penalty is, in effect, an enhancement provision to the crime
of aggravated murder. As an enhancement provision, defendant
argues, the State should bear the burden of proving the need to
impose it by proving the absence of mitigating factors. The
present statute, argues the defendant, places this burden upon the
defendant. Defendant's argument might have merit if the statute
did indeed place the burden on him; however, a close examination
of the language of the special interrogatory required by RCW
10.95.060(4) indicates that the State bears the burden on this
RCW 10.95.060(4) provides:
" (4) Upon conclusion of the
evidence and argument at the special sentencing proceeding, the
jury shall retire to deliberate upon the following question: "Having
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?"
Defendant next asserts that the
statute impermissibly allows the jury to consider, in answering
the special interrogatory, "any relevant factors." He reasons from
this phrase that the statute is impermissibly vague. RCW
10.95.070. Defendant's conclusion ignores the beneficial effect of
this broad language. With the restrictions placed on this statute
by BARTHOLOMEW I, the broad wording of this section of the statute
acts solely in defendant's interest. Furthermore, the constitution
requires liberal admission of mitigating circumstances. SEE
LOCKETT v. OHIO, 438 U.S. 586, 604, 57 L. Ed. 2d 973, 98 S. Ct.
2954 (1978). Defendant's argument is thus without merit.
Defendant's final constitutional
challenge to the death penalty statute raises the issue of whether
allowing an individual a choice between two methods of execution
is unconstitutional. The State asserts that giving a defendant a
choice of methods is LESS cruel than imposing one method or the
In STATE v. FRAMPTON, 95 Wn.2d 469,
627 P.2d 922 (1981), we rejected the argument that death by
hanging was unconstitutional. The broader question, of whether a
CHOICE between hanging or lethal injection is unconstitutional,
has never been at issue in this state.
Neither defendant nor the State
offers authority to support their positions. Contrary to both
parties' assertions, logic dictates neither result. Individual
reactions to the various methods of execution and the right to
choose vary greatly. In some cases, a person may be so appalled by
the thought of physically hanging by the neck that the option of
death by lethal injection is welcome. To others, the idea of lying
strapped upon a gurney awaiting the lethal poison to seep into
one's veins at an unknown time may be equally abhorrent. These
individuals embrace the idea of choosing the method of their death
as a way to avoid their own private terrors. But to a third type
of individual, the choice itself is cruel. As they await the day
of their death, they are faced not only with the terror of death
itself but also with the terror of making the wrong choice on how
to die. These individuals do not embrace the idea of choice; they
dread its requirement that they take an active part in their own
To resolve this issue either way
would require that, in one case or the other, the court's personal
view of cruelty prevails over the views of condemned felons. By
removing the choice, we impose a cruel punishment upon those who
dread a particular method of execution. Retaining the right of
choice, on the other hand, may impose severe psychological
pressure on those who are frightened of the decision itself.
On balance, on this record, we
cannot agree with defendant's assertion that the choice in and of
itself is necessarily cruel punishment. The record before us is
devoid of any evidence relating to what psychological effect the
choice of execution method has upon those sentenced to death.
Moreover, defendant does not even allege that he has or will
undergo emotional trauma by having to select the method of his
demise. He merely asks, as part of a general constitutional attack
on the statute, that this court address the issue in the abstract.
To accept defendant's argument would require that we speculate as
to whether it is more cruel to impose a choice or a given method
of execution. This we decline to do.
Having rejected defendant's attack
on the death penalty statute, we turn now to his challenges to the
sentencing proceeding. Specifically, defendant challenges the
trial judge's decision to allow the State to introduce evidence
concerning his gun collection. He asserts that this evidence was
irrelevant, prejudicial and violative of his due process rights.
We agree with all three contentions.
The challenged evidence included the
admission of several weapons: (1) a CAR 15 semiautomatic rifle (civilian
version of the military's M-16), (2) a 12-gauge shotgun with one
shortened barrel, (3) a .22 caliber rifle, and (4) a pistol with
interchangeable barrels. The last item belonged to defendant's
landlord. In addition to the weapons themselves, the prosecution
presented the testimony of several experts on firearms who alleged
that, though the weapons were legal, they were not suitable for
hunting or sport.
Michael J. Peck of the Department of
Game observed that the CAR 15 was a legal varmint gun but not
commonly used. He stated that the CAR 15 was "designed as an
antipersonnel rifle." Report of Proceedings, at 2470. Referring to
the shotgun with the shortened barrel, he claimed that this weapon
was not legal for hunting birds in the state because it was not "plugged".
(Another State's witness testified, however, that the gun was of a
type which would be used to hunt deer.)
The defense rebutted this inference
by establishing that the shotgun was in fact plugged.
Defendant took the stand and
testified that he used the CAR 15 for hunting varmints. He
explained that he had purchased the gun because it was very
similar to the M-16 he carried during his 81/2 years in the
military. In addition, his ex-girl friend testified that she had
defendant's second, full-length barrel for the shotgun.
During his opening statement, the
prosecutor sought to portray defendant as an extremely dangerous
individual. In arguing to the court for the gun collection's
admissibility, he noted that it would give the jury an insight
into defendant's personality, because the guns he owned were good
for only one purpose, "killing others in combat". Report of
Proceedings, at 2431. The prosecution's closing argument
emphasized that defendant was a dangerous man because the CAR 15
was "an assault weapon to gun groups of people down in combat
situations." Report of Proceedings, at 2587.
Citing our original decision in
STATE v. BARTHOLOMEW, 98 Wn.2d 173, 654 P.2d 1170 (1982) (BARTHOLOMEW
I), defendant asserts that a new sentencing proceeding is needed.
He argues that it was error to admit his gun collection because it
related to nonstatutory aggravating factors. The State counters
with the argument that ZANT v. STEPHENS, _____ U.S. _____, 77 L.
Ed. 2d 235, 103 S. Ct. 2733 (1983) specifically allows
introduction of a wide range of evidence of aggravating factors.
Defendant responds by noting, quite correctly, that ZANT pertains
to evidence of convictions. The State asserts that broad language
in ZANT, as well as that found in its companion cases, BARCLAY v.
FLORIDA, _____ U.S. _____, 77 L. Ed. 2d 1134, 103 S. Ct. 3418
(1983), BAREFOOT v. ESTELLE, _____ U.S. ____, 77 L. Ed. 2d 1090,
103 S. Ct. 3383 (1983), and CALIFORNIA v. RAMOS, _____ U.S. _____,
77 L. Ed. 2d 1171, 103 S. Ct. 3446 (1983), strongly suggests that
the Court would not agree that the Eighth Amendment requires the
restrictions that BARTHOLOMEW I placed on the admission of
aggravating evidence. The State's argument ignores constitutional
limitations placed upon admission of evidence by the United States
Supreme Court. This limitation, as explained below, requires
reversal of defendant's sentence of death and remand for a new
[19, 20] Our analysis starts with
the well established rule
that constitutionally protected
behavior cannot be the basis of criminal punishment. SEE HESS v.
INDIANA, 414 U.S. 105, 107, 38 L. Ed. 2d 303, 94 S. Ct. 326 (1973)
(constitutional guaranties of freedom of speech forbid states to
punish use of words or language not within narrowly limited
classes of speech); STANLEY v. GEORGIA, 394 U.S. 557, 22 L. Ed. 2d
542, 89 S. Ct. 1243 (1969) (State may not punish mere possession
of obscene material in privacy of home).
To protect the integrity of
constitutional rights, the courts have developed two related
propositions. The State can take no action which will
unnecessarily "chill" or penalize the assertion of a
constitutional right and the State may not draw adverse inferences
from the exercise of a constitutional right. UNITED STATES v.
JACKSON, 390 U.S. 570, 581, 20 L. Ed. 2d 138, 88 S. Ct. 1209
(1968) (capital punishment provision of Federal Kidnapping Act
unconstitutionally chilled Fifth Amendment right not to plead
guilty and Sixth Amendment right to demand jury trial); STATE v.
FRAMPTON, 95 Wn.2d 469, 627 P.2d 922 (1981) (previous Washington
death penalty statute needlessly chilled defendant's right to
plead not guilty and demand a jury trial); GRIFFIN v. CALIFORNIA,
380 U.S. 609, 614, 14 L. Ed. 2d 106, 85 S. Ct. 1229 (1965) (drawing
adverse inference from defendant's failure to testify
unconstitutionally infringed on defendant's Fifth Amendment rights).
SEE ALSO STATE v. MACE, 97 Wn.2d 840, 650 P.2d 217 (1982) (defendant's
post arrest silence cannot be viewed as evidence of guilt).
The proposition that adverse
inferences may not be drawn from constitutionally protected
behavior was recently reaffirmed and applied, as a distinguishing
factor, to death penalty proceedings. SEE ZANT v. STEPHENS, SUPRA.
In ZANT, the defendant argued that
the fact finder's improper reliance on an invalid statutory
aggravating factor required that his sentence be reversed. The
Court rejected the argument, finding that
"[i]n this case, the jury's finding
that respondent was a person who has a "substantial history of
serious assaultive criminal convictions" did not provide a
sufficient basis for imposing the death sentence. But it raised
none of the concerns underlying the holdings in [STROMBERG v.
CALIFORNIA, 283 U.S. 359 (1931), THOMAS v. COLLINS, 323 U.S. 516
(1945), and STREET v. NEW YORK, 394 U.S. 576 (1969)], FOR IT DID
NOT TREAT CONSTITUTIONALLY PROTECTED CONDUCT AS AN AGGRAVATING
(Italics ours.) ZANT, 103 S. Ct. at
The Court went on to observe that
the aggravating circumstances did not authorize the jury to draw
adverse inferences from conduct that is constitutionally protected.
After giving several examples, such as the expression of unpopular
political views or the request for trial by jury, the Court
"If the aggravating circumstance at
issue in this case had been invalid for reasons such as these, DUE
PROCESS OF LAW WOULD REQUIRE THAT THE JURY'S DECISION TO IMPOSE
DEATH BE SET ASIDE.
(Italics ours.) ZANT, 103 S. Ct. at
2747. SEE ALSO BARCLAY v. FLORIDA, _____ U.S. _____, 77 L. Ed. 2d
1134, 103 S. Ct. 3418 (1983).
The above language clearly restricts
the admissibility of evidence relating to constitutionally
protected behavior. Because the Court characterized the
impermissible use of constitutionally protected behavior as a
violation of due process, if the evidence in question allowed the
jury to draw adverse inferences from a constitutional right,
reversal of defendant's death sentence is required.
Here, the challenged evidence
directly implicates defendant's right to bear arms. Const. art. 1,
" The right of the individual
citizen to bear arms in defense of himself, or the state, shall
not be impaired, but nothing in this section shall be construed as
authorizing individuals or corporations to organize, maintain or
employ an armed body of men.
This constitutional provision is
facially broader than the Second Amendment, which restricts its
reference to "a well regulated militia." «8»
Although we do not
decide the parameters of this right, here, defendant's behavior -
possession of legal weapons - falls squarely within the confines
of the right guaranteed by Const. art. 1, 24. «9»
Defendant was thus
entitled under our constitution to possess weapons, without
incurring the risk that the State would subsequently use the mere
fact of possession against him in a criminal trial unrelated to
their use. Our conclusion follows from the clear language of
Washington's constitution. In addition, it coincides with the
interpretation placed on a similar provision contained in the
Oregon constitution. Oregon Const. art. 1, 27 states:
" The people shall have the
right to bear arms for the defence (sic) of themselves, and the
State, but the Military shall be kept in strict subordination to
the civil power[.]
In STATE v. KESSLER, 289 Or. 359,
614 P.2d 94 (1980), the Oregon Supreme Court held that this
language protects the right of an individual to possess weapons.
This ruling was reaffirmed in STATE v. BLOCKER, 291 Or. 255, 630
P.2d 824 (1981). In BLOCKER, the court noted that their
constitution also protects the citizen's right to possess weapons
outside the home. SEE ALSO Comment, THE IMPACT OF STATE
CONSTITUTIONAL RIGHT TO BEAR ARMS PROVISIONS OF STATE GUN CONTROL
LEGISLATION, 38 U. Chi. L. Rev. 185 (1970).
Here, in arguing that
defendant's exercise of that constitutional right meant that he
deserved the death penalty, the State attempted to draw adverse
inferences from defendant's mere possession of these weapons. Our
constitution, and the due process analysis contained in ZANT,
prohibits use of this evidence.
Defendant's sentence of death must
therefore be reversed.
Defendant next argues that this
evidence is both irrelevant and highly prejudicial. We agree. The
guns in question had no connection with the crime and were all,
admittedly, legally owned. We see no relation between the fact
that someone collects guns and the issue of whether they deserve
the death sentence. Furthermore, we take judicial notice of the
overwhelming evidence that many nonviolent individuals own and
enjoy using a wide variety of guns. This fact has no bearing on
the issue of whether any of them deserve to live or die.
While the State urges that if this
evidence was irrelevant, it was nonetheless nonprejudicial, we
cannot agree with this proposition. Personal reactions to the
ownership of guns vary greatly. Many individuals view guns with
great abhorrence and fear. Still others may consider certain
weapons as acceptable but others as "dangerous." A third type may
react solely to the fact that someone who has committed a crime
has such weapons. Any or all of these individuals might believe
that defendant was a dangerous individual and therefore deserved
to die, just because he owned guns. This was, in fact, the crux of
the prosecutor's argument to the jury for defendant's death.
Consequently, we reject the State's argument that no prejudice
resulted from admission of these weapons.
Because the challenged evidence was
violative of defendant's due process rights, irrelevant and thus
inadmissible, a new sentencing proceeding is required.
Our disposition of this issue makes
it technically unnecessary to reach the remaining challenges to
the death sentence. One issue, that of the admissibility of the
polygraph, has been already resolved above. For additional
guidance of the trial court on remand, we will also address
defendant's allegation that the jury was improperly instructed
during the sentencing proceeding. He first attacks instruction 2
""Having 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?"
If you unanimously answer "yes" the
sentence will be death. If you do not unanimously answer "yes," or
if you unanimously answer "no" the sentence will be life
imprisonment without the possibility of parole.
In deciding the question posed, you
may consider any relevant factors, including, but not limited to
(1) Whether the defendant has or
does not have a significant history, either as a juvenile or an
adult, of prior criminal activity;
(2) Whether the murder was committed
while the defendant was under the influence of extreme mental
(3) Whether the victim consented to
the act of murder;
(4) Whether the defendant was an
accomplice to a murder committed by another person where the
defendant's participation in the murder was relatively minor;
(5) Whether the defendant acted
under duress or domination of another person;
(6) Whether, at the time of the
murder, the capacity of the defendant to appreciate the
wrongfulness of his or her conduct or to conform his or her
conduct to the requirements of law was substantially impaired as a
result of mental disease or defect;
(7) Whether the age of the defendant
at the time of the crime calls for leniency; and
(8) Whether there is a likelihood
that the defendant will pose a danger to others in the future.
Report of Proceedings, at 2579-81.
Defendant asserts that this
instruction confused the jury by referring to mitigating factors
of which there was no evidence, I.E., factors 3, 5 and 6.
Defendant also contends that the instruction was deficient because
it did not mention other nonstatutory, mitigating factors of which
there was evidence.
The challenged instruction
adequately informed the jury that it could consider any mitigating
factor and simply listed those mentioned by the statute. This was
a correct statement of the law and allowed the jury to consider
all of defendant's evidence. Thus, the trial judge did not err in
giving this instruction.
Defendant urges that it was also
error not to give his sentencing verdict form because the one
given by the trial judge did not require unanimity. Defendant's
argument ignores that portion of instruction 2 which states that a
unanimous answer to the special interrogatory will result in the
death sentence, while a nonunanimous answer results in life
imprisonment. This statement adequately informed the jury of the
Likewise, we find no error in the
trial judge's refusing to give the defendant's supplemental
instruction. That instruction informed the jury that it had no
duty to reach a unanimous decision and that once one juror
answered the special interrogatory in the negative, the jury had
reached a verdict. The instruction defendant proposed is without
authority and should not be given. Defendant's proposed
instruction would stifle jury discussion concerning the death
penalty and encourage its arbitrary and capricious imposition.
Finally, defendant assigns error to
the trial judge's decision to allow the jury access to newspapers
and television coverage of the case during the interim period
between the guilt phase and the sentencing verdict. Our decision
to remand this case for a new sentencing proceeding makes this
issue moot. In future proceedings, however, we emphasize that
trial judges must specifically instruct the jury that until the
proceedings are COMPLETED, they should avoid any contact with news
stories concerning the case. «10»
The judgment is
affirmed, but the case is remanded for a new sentencing proceeding,
with a new jury, in accordance with the principles set forth above,
to determine whether the death penalty should be imposed.
CONCURRING JUDGES: Dore and Dimmick,
JJ., and Cunningham, J. Pro Tem., concur.
Williams, C.J., and Brachtenbach,
J., concur in the result.
CONCURRING OPINION: I concur
with the result of the majority and would also remand for a new
sentencing hearing. There are three matters in which I disagree
with the analysis of the majority.
Since the imposition of the death
penalty is reversed on other grounds, it is unnecessary for the
court to reach the issue as to whether the death penalty violates
Const. art. 1, 14. Nevertheless, my position is contrary to that
of the majority. I believe the death penalty does violate Const.
art. 1, 14. The views of the Supreme Court of California in PEOPLE
v. ANDERSON, 6 Cal. 3d 628, 493 P.2d 880, 100 Cal. Rptr. 152
(1972) on the issue of the death penalty as "cruel punishment" are
congruent with mine.
In addition to citing GREGG v.
GEORGIA, 428 U.S. 153, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976) as
authority for its views, the majority argues this court should not
substitute its moral judgments for those of the people. It further
points out the people of California amended their constitution
subsequent to PEOPLE v. ANDERSON so the death penalty was, in
California, no longer deemed cruel.
I fully agree with the majority that
the judiciary must defer to the moral judgments contained in our
constitution. If the meaning and application of our Bill of Rights,
and the judgments contained therein, were fully revealed, there
would be no need for this court to sit on cases involving our Bill
of Rights as the popular will would always be manifest.
Unfortunately, the constitutional language defies this easy escape
for the judiciary. Thus, rather than decline to articulate the
meaning of the constitution and its application, it is the duty of
this court to express its understanding of the moral judgments
rendered by the people in their constitution. If the people then
believe the court is in error, the means to correct that error are
available through the appropriate mechanism to amend our basic
document. Const. art. 23.
Regardless of my views or the views
of the majority, however, we need not determine the applicability
of Const. art. 1, 14. We should follow the long established
practice of this court that when a case can be decided on other
grounds we decline to consider constitutional issues. OHNSTAD v.
TACOMA, 64 Wn.2d 904, 395 P.2d 97 (1964).
Our decision in STATE v. BARTHOLOMEW,
101 Wn.2d 631, 683 P.2d 1079 (1984) (BARTHOLOMEW II) is directly
contrary to the refusal of the majority to admit the polygraph of
Monte Yovetich. BARTHOLOMEW II holds polygraph interrogations are
admissible in the sentencing phase as evidence of mitigation.
BARTHOLOMEW II, at 645-47. It was error for the trial court to
refuse to allow the polygraph to be used by defendant.
I agree the evidence of defendant's
gun collection should not have been admissible in the case in
chief of the State at the sentencing stage. I do not agree that
Const. art. 1, 24 is the appropriate vehicle by which to reach
this conclusion. While I do not necessarily disagree with the
construction placed by the majority on this constitutional
provision, I believe the analysis for the admissibility of
evidence by the State at the sentencing hearing we adopted in
BARTHOLOMEW II is directly on point. Evidence from the State of
nonstatutory aggravating factors must be "limited to defendant's
criminal record, evidence that would have been admissible at the
guilt phase, and evidence to rebut matters raised in mitigation by
the defendant." BARTHOLOMEW II, at 642. The testimony on
defendant's gun collection was submitted by the prosecution in its
case in chief. It is inadmissible under the rule in BARTHOLOMEW II.
We need not reach Const. art. 1, 24.
CONCURRING JUDGES: Stafford and
Pearson, JJ., concur with Dolliver, J., as to parts II and III.
Reconsideration denied August 7, 1984.
File photo of Mitchell Rupe, who was convicted for
killing two women
during a 1981 bank robbery.
In this 2000 file photo, Mitchell Rupe reads a
statement to jurors at the conclusion of his third death-penalty
hearing in Olympia. (Photo Louie Balukoff/AP)