Background of the Cal Brown Case

NAME: Brown, Cal Coburn
D.O.B: April 16, 1958
Race: White
DATE OF CRIME: May 24, 1991
PLACE OF CRIME: King County

BRIEF FACTS: Cal Brown was convicted of aggravated first-degree murder for the 1991 stabbing and strangulation death of 21-year-old Holly Washa. The aggravating circumstances were that the murder was committed (1) to conceal the identity of the person committing the crime, and (2) in the course of or furtherance of Kidnapping in the First Degree, Rape in the First Degree, and Robbery in the First Degree. State v. Brown, King County Superior Court Cause No. 91-1-03233-1.

DATE OF CONVICTION: Dec. 10, 1993
SPECIAL SENTENCING: Dec. 27, 1993
JUDGMENT AND SENTENCE: King County Superior Court, Cause No. 91-1-03233-1, Jan. 28, 1994

Recent Developments:

Jan. 21, 2009: US Supreme Court denies petition for writ of certiorari

Jan 28, 2009: Mandate issued, execution scheduled for March 13, 2009

March 09, 2009: Washington Supreme Court denies Brown's original action against state officers. (Supreme Court No. 82742-7)

March 11, 2009: Thurston County Superior Court Judge Chris Wickham denies Cal Coburn Brown’s motion to stay his execution.

March 12, 2009: Clemency and Pardons Board heard Brown's request for clemency at 1 p.m., voted 2-2 to stay the execution.

March 12, 2009: Shortly after 4 p.m., the State Supreme Court ruled 5-4 to grant Brown a stay of execution.

July 10, 2009: Thurston County Superior Court issued its decision in Stenson, et al. v. Vail, et al. ruling that Washington's lethal injection protocol is constitutional both under the United States Constitution and Washington's Constitution. The Court concluded that Washington's lethal injection protocol is "designed to administer the death penalty in a way that is humane for both the inmate and the observers. It is an attempt to provide some dignity to this most grave event."

July 14, 2009: The AGO filed in the Washington Supreme Court a motion to vacate the stay entered for Cal Brown, but the motion was denied on Sept. 10, 2009. A date of execution cannot be set until the stay is vacated. Once the stay of execution is vacated, the date of execution will automatically reset for thirty judicial days (approximately 45 calendar days).

July 29, 2010: The Washington State Supreme Court dismissed various challenges to Washington's method of carrying out lethal injection and lifting the stay of execution for Brown. The justices unanimously agreed that the Legislature properly delegated to the state Department of Corrections the authority to enact and implement an execution protocol. The court also declared the inmates’ constitutional challenge to Washington’s three-drug lethal injection protocol as moot now that the state is using just one lethal injection drug, sodium thiopental. Brown, Stenson and Gentry argued in the trial court that that the current one-drug protocol would not inflict pain, and would therefore would be constitutional. Under state law, the date of execution automatically resets for 30 judicial days. Brown’s new execution date is set for

August 18, 2010: Brown and Gentry file a motion urging Judge John Coughenour to stay the Sept. 10 execution, arguing: the Department’s one drug protocol presents a risk of severe pain because the Department has provided no information regarding the qualifications of the lethal injection team; Brown was denied the right to access to courts by the change in the protocol; and the acquisition of the sodium thiopental violates the controlled substances act.

August 19, 2010: The State of Washington filed a motion requesting the court deny the motion for a stay.

August 31, 2010: The Honorable Judge John c. Coughenour issued an order denying Brown's motion for a stay.

Sept. 2, 2010: Brown filed an emergency motion for a stay of execution in the 9th Circuit Court of Appeals. Brown’s motion argues that the lethal injection team is unqualified and that he was denied a full and fair hearing in both the state court and the district court because he was not permitted to conduct discovery regarding the qualifications and experience of the team members. He has asked for a stay until he has been given the opportunity to conduct discovery of the team members’ qualifications and experience. The state filed a response. Brown also filed an emergency motion to stay the execution along with his third personal restraint petition in the Washington State Supreme Court. Brown argues the execution of his death sentence will violate the state and federal Constitutions. He asserts his death sentence should be reversed because information relating to his mental illness (bipolar disorder) was improperly downplayed during sentencing.

Sept. 3, 2010: Brown filed a third motion in King County Superior Court, seeking a stay of execution based on his allegation that he is incompetent and cannot be executed as a result. King County is responding to this motion.

Sept. 4, 2010: The Ninth Circuit Court of Appeals issued a 2-1 decision, denying confessed murderer and rapist Cal Coburn Brown's motion for a stay of his pending Sept. 10 execution.

Sept. 7, 2010: Brown filed a petition for certiorari and an application for a stay of execution in the US Supreme Court alleging the US District Court, Western Washington, and the Ninth Circuit erred in denying a stay. The King County Superior Court denied Brown's Sept. 3 motion for a stay of execution based on his allegation that he is incompetent and cannot be executed as a result.

Sept. 8, 2010: Brown filed a motion for reconsideration of the Sept. 7 King County Superior Court ruling denying his motion for a stay. King County Superior Court then denied his motion for reconsideration. The Washington Supreme Court denied Brown's Sept. 2 motion for a stay of execution in his third personal restraint petition in which he argued he is incompetent and cannot be executed as a result. Governor Chris Gregoire issued a statement declining to grant Brown's petition to commute his sentence from death to life in prison without possibility of parole.

Sept. 9, 2010: The US Supreme Court denied Brown's motion asking the court to hear his appeal challenging Washington’s lethal injection protocols. Brown filed a motion requesting a stay of his execution in US District Court, Western Washington, in Seattle. His motion before District Court Judge John C. Coughenour argues that absent his medication, he would be incompetent to be executed. This motion, while similar to the motion before the state Supreme Court, is unrelated. The Washington State Supreme Court denied Brown's motion requesting a stay of his scheduled execution and arguing that absent his medication, he would be incompetent to be executed. Judge Coughenour rejected Brown's motion for a stay. Brown appealed to the Ninth Circuit Court of Appeals. The Ninth Circuit Court of Appeals denied his motion for a stay. Brown appealed the earlier decision by the Washington State Supreme Court to the US Supreme Court who did not respond by midnight.

Sept. 10, 2010: Brown was put to death by lethal injection. His time of death was 12:56 a.m.

ProDeathPenalty.Com

In 1984, Cal Coburn Brown was sentenced as a dangerous offender for his attempted assault on a 24-year-old woman in Corvallis, Oregon. Brown, a freshman at Oregon State University at the time, had been introduced to the woman by her babysitter. Brown appeared at the woman's home wearing a hat and carrying a backpack. He persuaded her to let him rest what he claimed was a sprained leg. When she turned her head to call him a cab, Brown flung a 43-inch leather thong over her head to choke her, but the thong caught on her lip. The victim recalled the thong instantly tightening and she was yanked off her feet backwards. She landed on her stomach six feet away with the thong still around her neck and Brown kneeling behind her. She rolled to her side and saw him wild-eyed staring into her face." He held her, and she screamed and a police officer who happened to be nearby arrested him. Police found a large knife and a roll of two-inch wide duct tape in his backpack. The woman's two small sons were home during the attack.

At the time, Brown already had an extensive criminal record, including a 1977 conviction in California that involved a knife assault on a woman in a shopping center. Brown served the minimum seven-and-a-half-year sentence for the Oregon attempted assault conviction and was released on parole from the Oregon State Penitentiary on March 25, 1991, after receiving a favorable psychiatric evaluation. Upon Brown's release, he was placed under the supervision of a parole office who specialized in the supervision of sex offenders. The parole officer was given a letter from the district attorney who had prosecuted Brown on the dangerous offender case. In the letter, the DA stated that not only did he consider Brown to be one of the most dangerous criminals whom he had ever prosecuted, but also that "unless he has undergone a remarkable transformation in prison, he will remain a potential mutilator and killer of women."

During the first two months of his parole, Brown had enrolled as a student at Oregon State University and had met with his parole officer. Towards the end of that period, the parole officer could not get in touch with Brown and on May 23, 1991, requested that an arrest warrant be filed on Brown. On the very same day, Brown carjacked Holly Carol Washa in the parking lot of a hotel near the Seattle-Tacoma Airport and demanded at knifepoint that she "drive or die." He later forced her into the passenger seat, tied her hands behind her back and drove her to his motel nearby. In his motel room, Brown forced Holly to remove her clothing, then tied her to the bed and raped and tortured Holly repeatedly for the course of several hours. The next day, Brown forced Holly to call in sick at her job at TCI Cablevision. He again tied Holly to the bed, gagged her and sexually assaulted her with foreign objects, including a bottle. He whipped her and shocked her with an electrical cord. Eventually, Brown put Holly Washa in the trunk of her car, slit her throat, stabbed her repeatedly and left her to bleed to death in a parking lot.

Several days later, Holly's body was found in the trunk of her car. After stabbing Holly, Brown then flew to Palm Springs, California, to rendezvous with his next victim, a woman named Susan, whom he had met on an airplane a few days earlier and with whom he had made weekend plans. While inside their hotel room, Brown offered to give Susan a backrub. He was rubbing her back when he suddenly jerked her arms behind her back in a "very fast, brutal way. He said, 'Don't scream." I did scream and...he slit my throat." Brown handcuffed Susan with her arms behind her back. She saw blood on the pillow. "At that point he lowered the knife so that I could see it. It was down near my heart, pointed toward me." Brown stopped the bleeding with a makeshift bandage of sanitary napkins held against her throat with her nylons, and then sexually assaulted Susan. Then he forced her to write a check for $4000 to him. He left the room to get more bandages. Amazingly, Susan was able to call the front desk and summon the police, who arrived and obtained a description of Brown from Susan, and arrested Brown in the hotel parking lot. Brown quickly gave audio-taped confessions to both the rape and attempted murder of Susan in California, and the rape and murder of Holly Washa in Washington.

After pleading guilty in California and receiving a sentence of life imprisonment, Brown was tried in Washington. A jury convicted Brown of aggravated first-degree murder, and sentenced him to death. In 2007, when the US Supreme Court agreed to hear an appeal from Brown, Holly's family expressed their frustration. "Here he is, all these years later, enjoying the life that some people don't have," said Ruthcile Washa, the grandmother of Holly Washa, a 21-year-old Nebraska native who came to Seattle to follow her big-city dreams and was murdered by Brown. "The death penalty will give us peace of mind that he won't get out and do this to someone else." Washa left tiny Ogallala, Nebraska because she wanted to be a flight attendant. Washa left Ogallala in February 1988 to attend a three-month course at the International Air Academy in Vancouver, Wash. Three months later, she moved to Seattle. She worked part-time as a dispatcher at TCI Cablevision and two weeks before her murder began a second job in a Hickory Farms store in Southcenter mall. Her former boyfriend, Don Briscoe, said he and Holly had met in the Vancouver school and lived together until the month prior to her murder. He said they had decided to take a break from their relationship but remained close friends. "She was the sweetest person; she cared about people so much," Briscoe said. In 2005, the 9th Circuit Court of Appeals overturned Brown's death sentence, but it was reinstated by the US Supreme Court in 2007. Brown had a prior execution date in March 2009 but received a stay.

Associated Press

"Wash. executes man convicted of woman's murder," by Shannon Dininny and Nicholas K. Geranios. (AP September 9, 2010)

WALLA WALLA, Wash. — Convicted killer Cal Coburn Brown was executed early Friday by lethal injection for the rape, torture and murder of a Seattle-area woman, after delivering a statement complaining he was treated unfairly by the legal system. Brown, 52, died at 12:56 a.m. PDT, after a four-member team injected a lethal one-drug cocktail in the execution chamber of the Washington State Penitentiary.

The father, brother and two sisters of his victim, Holly Washa, 21, witnessed the execution, as did King County prosecutor Dan Satterberg. Brown protested sentencing disparities, saying that criminals who had killed many more people, such as Green River killer Gary Ridgway, were serving life sentences while he received a death sentence. "I only killed one victim," he said. "I cannot really see that there is true justice. Hopefully, sometime in the future that gets straightened out."

Brown did not apologize to the family of the victim, but said he understood their emnity for him. He said he forgave that hatred, held no emnity toward them and hoped the execution would give them closure. He also said the prison staff had been most professional and that he had no complaints about his treatment there in 17 years.

After his comments, Brown, who was lying on his back strapped to a gurney, looked up at the tubes sticking out of the wall and connected to his body. When the drug was administered, his chest heaved three times and his lips shuddered, then there was no movement. Brown's attorney and members of his family were not present at the execution, though he spoke with them by phone on Thursday.

The U.S. Supreme Court, 9th U.S. Circuit Court of Appeals, and the state Supreme Court on Thursday all rejected efforts to stay the execution. Gov. Chris Gregoire rejected his plea for clemency on Wednesday. It was Washington's first execution since 2001, and Brown had been on death row for 16 years.

Brown had argued that his mental illness was not adequately considered during his sentencing and that it should bar his execution. According to court records, he suffered from bipolar disorder.

Brown confessed to killing the 21-year-old Washa during an interrogation in California for an alleged assault on a woman there. He later led authorities to Washa's battered body, which was inside the trunk of a car. Brown, who is from San Jose, Calif., had a history of violence against women, including a 1977 conviction in California for assaulting a woman with a knife at a shopping center. He also served 7 1/2 years — the minimum sentence — for assaulting another woman in Oregon in 1984.

Seattle Times

"Washington state says new execution method was carried out 'humanely'; Family questions why Washington execution took 17 years," by Jennifer Sullivan. (September 10, 2010)

WALLA WALLA — Friday's execution of Cal Coburn Brown, the first time the state has used just one drug in a lethal injection, was carried out "professionally, humanely and was dignified," according to the state Department of Corrections. Washington and Ohio are the only two states that use a single drug, sodium thiopental, to execute condemned inmates. In other states, lethal injection is done with a three-drug cocktail, a method that has come under fire from defense lawyers and groups opposed to the death penalty. "Our preparation, and from what we have learned from the state of Ohio, we had every confidence the one-drug protocol would be efficient and swift," Belinda Stewart, Corrections spokeswoman, said Friday.

Coburn was executed early Friday morning at the Washington State Penitentiary for the May 1991 rape and murder of Holly Washa, 21, in a SeaTac motel.

After making a nearly three-minute statement from the prison's death chamber, Brown was administered five grams of sodium thiopental intravenously while strapped to a gurney. His chest heaved three times and his lips shuddered, then there was no movement.

Witnesses said Brown died about a minute and a half after the drug was administered. He was pronounced dead by prison officials at 12:56 a.m. Brown was the first person executed in Washington since August 2001. King County Prosecutor Dan Satterberg, who witnessed the execution along with members of Washa's family and several news reporters, characterized Brown's death as "quick and painless."

"It's been so long that we have had to deal with all of this; now that it's over, I don't have to think about him anymore," a tearful Becky Washa, Holly's sister, told reporters during a news conference after the execution. The Walla Walla County Coroner's Office is scheduled to perform an autopsy on Brown, 52, according to Stewart.

Portland-based anti-death-penalty attorney Jeff Ellis, who was a member of Brown's defense team, said "there are many reasons to conclude that the one-drug protocol lessens the risk of needless pain and suffering." However, he said, it obscures the basic issue of whether the state should be in the business of killing. "As long as we have a death penalty, we must take measures to avoid the needless infliction of pain on the person who is being killed," he said. "However, killing a human being is never humane when we could instead lock him up forever."

The state Supreme Court stayed Brown's execution last year after his attorneys claimed the state's three-drug method of lethal injection — the anesthetic sodium thiopental, as well as a paralyzer and a heart-attack-inducing drug — constituted cruel and unusual punishment and was prone to error. Two other inmates on death row, Darold Stenson and Jonathan L. Gentry, joined the appeal, which effectively put on hold executions in the state. The Department of Corrections subsequently made the one-drug lethal injection the primary method of death, while also allowing the condemned to choose the three-drug method. Death-row inmates may opt for hanging instead of lethal injection. The last man to be executed by hanging was Charles Campbell in May 1994.

In July 2010, the state Supreme Court lifted the stay because the change in execution policy made the initial argument moot. Over the past year, Ohio switched to the single-drug method after the botched execution of Romell Broom that was halted by Gov. Ted Strickland last September. Executioners unsuccessfully tried for hours to find a usable vein for injection, and Broom has appealed the state's attempt to try again.

Ellis said there is a condemned inmate on Oregon's death row who has petitioned to change that state's system of execution to the single-drug protocol. He said he is certain other states watched how the one-drug protocol worked during Brown's execution. "I think that within a couple of years, they'll go to the one-drug protocol," Ellis said Friday. It's just more humane. There just isn't any debate about that."

Timeline of Cal Coburn Brown case

May 23 and 24, 1991: Cal Coburn Brown kidnaps Holly Washa, 21, of Burien, near Seattle-Tacoma International Airport. He tortures and repeatedly rapes her before killing her by slashing her throat.

May 27: Brown is arrested in California after he attacks a woman in Palm Springs. He surprises detectives by confessing to Washa's slaying during questioning.

June 11: Brown is charged with aggravated murder in King County Superior Court.

Dec. 10, 1993: Jury finds Brown guilty of murder.

Jan. 28, 1994: Brown is sentenced to death.

June 29, 1997: The state Supreme Court affirms Brown's conviction and death sentence.

Dec. 8, 2005: The 9th Circuit Court of Appeals reverses the conviction and death sentence because of an alleged error in jury selection.

June 1, 2007: The U.S. Supreme Court reverses the appellate court's decision, finding that Brown had waived any challenge to jury selection by not objecting when a juror was excused for cause.

June 27, 2008: The 9th Circuit Court of Appeals affirms the conviction and death sentence after the case is returned from U.S. Supreme Court.

March 12, 2009: Less than eight hours before Brown's scheduled execution, the state Supreme Court issues a stay based on a last-minute appeal filed by Brown's attorneys challenging lethal injection.

July 29, 2010: The state Supreme Court rejects the challenge to the lethal-injection procedure and lifts the stay on Brown's execution.

Sept. 10: Brown is scheduled to be executed by lethal injection at the Washington State Penitentiary in Walla Walla.

KPSP-2 News

"Execution in Washington 20 Years After Arrest in Palm Springs." (9/10 6:42 pm)

A vicious murderer and rapist has been put to death in Washington, but the execution of 52-year-old Cal Brown may have never happened, if it weren't for another brutal crime he committed in the Coachella Valley. Investigators say days after he tortured, raped and killed 21-year-old Holly Washa, back in 1991, Brown came to Palm Springs and found another victim.

Inside what used to be a hotel on South Palm Canyon, Brown slashed a woman's throat, then tried to keep her alive, by wrapping her neck in sanitary napkins and nylon stockings, so he could withdraw money from her bank account, according to court documents. Fortunately, she survived the attack. "She was partially tied to the bed, but able to work free and call the front desk" recalled Cathedral City Police Lt. Glen Haas, then a 26-year-old Palm Springs Police Officer who made the arrest, not far from the hotel.

"There was only a couple of directions he could go," said Lt. Haas. "I ran out, and there was a man walking down Palm Canyon as if it was an early morning stroll." The man turned out to be Cal Brown. "Handcuffed him; found the weapon in his pocket, still had blood on it..still stained."

And in Palm Springs Police custody, Brown confessed to more than one crime to detectives. "He said something to the effect of, 'I have something else to tell you, and you better get something to write with,'" described Lt. Haas. "He tells them (detectives) a story about abducting this young girl in Washington, and they would find her body in the trunk of a car at SeaTac Airport in Seattle.

Washa's body was found, and Brown was eventually extradited to Washington where he was tried and sentenced to the death penalty. "He was an evil, evil person that can't hurt anyone anymore," said Lt. Haas, who still thinks about the young victim in Washington and her family. "Doesn't matter how long you've been a police officer, there's a human element that brings a tear to your eye and makes your heart ache."

SoundPolitics.Com

"Last Night's Execution Of Cal Coburn Brown Will Save 5 To 15 Lives Probably."

It has been years since he committed his horrendous crimes, so a review of them is in order:

[Holly] Washa had left Ogallala, Neb., three years before her murder believing Seattle was a prime spot to pursue a career as a flight attendant. She found part-time work as a dispatcher at a Seattle cable-television company and at a Hickory Farms store in Southcenter mall. Brown carjacked Washa, 21, at knife point near Seattle-Tacoma International Airport on May 23, 1991, and forced her to drive to a bank to withdraw money. He then held her for 34 hours at a motel where she was repeatedly raped, robbed, tortured and then slashed to death.

Brown then flew to California, where he was arrested for trying to rape and kill a woman. While being questioned by Palm Springs police, Brown told them they could find Washa's body in the trunk of her Oldsmobile in the parking lot of a SeaTac car-rental agency. Brown had been released from Oregon State Penitentiary just two months earlier despite the protests of a prosecutor who had helped convict him in 1984 for assaulting a woman.

In all the years he has been on death row, he has shown little remorse for his crimes.

For decades, there has been an academic debate over whether the death penalty deters murders. Simplifying greatly, you could say that the early part of that debate was dominated by sociologists who found no deterrent effect, and the latter part has been dominated by economists, who have found that every execution deters a number of murders, with most studies finding that it deters between 5 and 15 murders. You can find a list of recent studies here, and a New York Times article on them here. (You can find a dissenting view on the studies here.)

In my opinion, the economists have had the better of the argument, though the very range, 5-15, shows us that the matter is not settled. I say that, not just because economists tend to be far better methodologists than sociologists — though they do — but because the conclusion is a common sense one. If someone threatens our lives, almost all of us behave differently. But I do not think that the academic question is settled, for reasons I explained in this 2005 post. (Which is illustrated with an example of a famous killer.) But you don't need to take my word for it; you can take the considered opinion of economist Gary Becker.

Gary Becker, who won the Nobel Prize in economics in 1992 and has followed the debate, said the current empirical evidence was "certainly not decisive" because "we just don't get enough variation to be confident we have isolated a deterrent effect." But, Mr. Becker added, "the evidence of a variety of types — not simply the quantitative evidence — has been enough to convince me that capital punishment does deter and is worth using for the worst sorts of offenses."

That the evidence is "not decisive" does not absolve us from the responsibility to act. If Becker is right, then the death penalty saves lives, and abandoning it will lead to the loss of more innocents like Holly Washa. I think trading 1 Cal Coburn Brown for 5 to 15 Holly Washas is a good exchange. Those who oppose the death penalty are either unwilling to look at the evidence as Becker has, or willing to accept the death of many Holly Washas in order, as they see it, not to be complicit in the death of 1 Cal Coburn Brown. (I can understand that position, though I do not share it, but few who do seem to be willing to go all the way with it, since it implies an absolute commitment to pacifism. Among other things, it implies that police should not be armed with deadly weapons, and that we should abandon our armed forces.) You can make a pragmatic argument against the death penalty by saying that opponents have made death penalty fights so expensive that we would be better off using the money to reduce murders in other ways. I haven't seen such an argument, with actual numbers, but would be willing to look at it. I might still reject it, because it would allow a minority, using guerrilla tactics in our legal system, to over-rule the majority.

I saw two of the stories on this execution on our local TV stations. Neither story mentioned the possible deterrent effect of the execution. The story on channel 13, KCPQ, was so one-sided as to be more of an anti-capital-punishment editorial than a story. This kind of coverage is typical of death penalty stories.

State of Washington Office of the Governor

For Release: Immediate
Date: Sept. 8, 2010

Governor Gregoire’s statement on Cal Brown petition

OLYMPIA – Gov. Chris Gregoire today issued the following statement on Cal Brown’s petition to commute his death sentence to life in prison without the possibility of parole: “As governor, I have a constitutional duty to faithfully execute the laws of the state of Washington. I also have the solemn power to commute a death sentence to life imprisonment. The people of the State have entrusted the governor with this clemency power to use in extraordinary circumstances that call for leniency. The people did not inten this power to substitute personal views for the laws of the State.

“Cal Brown has petitioned for commutation of his death sentence to life imprisonment. I have carefully reviewed the facts of Cal Brown’s crimes, the documents and te the Clemency and Pardons Board, documents submitted to my office, and the judicial record.

“After this careful review, and after contemplating the grave importance of this matter, I have determined I will not intervene. I find no ba the jury in accordance with the laws of our state.

“I know of no extenuating circumstances and no flaws in the judicial process that justify changing the jury’s decisions or the sentence of to consider his diagnosis of a mental disorder. But the jury heard this evidence and considered whether he knew right from wrong and was in control of his conduct at the time of the murder of Holly Washa. State law provides the jury may consider any relevant factors, specifically including impairment due to a mental disorder, in deciding whether leniency is merited.

“The post-conviction review by the courts has been thorough. Since Cal Brown’s conviction, the U. S. Supreme Court, the Ninth Circuit Court of Appeals and the Washington State Supreme Court have reviewed his case and have found no basis to reverse his conviction or to change the death sentence imposed by the jury.

“The torture, rape and murder of Holly Washa were horrible acts of brutality. My sympathies and prayers are with Holly Washa’s family, who has suffered immeasurably from Cal Brown’s actions. No one can do anything to take away or lessen their pain. As a mother, my heart goes out to them for their tragic loss. I pray for Holly Washa. I will also pray for Cal Brown.”

Background Information:

In 1993 a jury in King County Superior Court convicted Cal Coburn Brown of premeditated murder with aggravating circumstances for the death of 21-year-old Holly Washa. Cal Brown admitted that he kidnapped Holly Washa, brutally raped and tortured her for two days, and then murdered her by slitting her throat. He told detectives he killed Holly Washa because he did not want to leave any witness alive.

In a special sentencing proceeding, Cal Brown’s attorneys presented evidence of mitigating circumstances, and the jury was asked whether it was “convinced beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency.” The jury unanimously concluded, beyond a reasonable doubt, that there were not sufficient mitigating circumstances to merit leniency.

The laws of the state of Washington provide that if the jury finds that there are not sufficient mitigating circumstances to merit leniency, the sentence shall be death. Accordingly, on January 28, 1994, the trial court imposed upon Cal Brown a sentence of death.

On March 11, 2009, Cal Brown submitted a petition requesting that the Governor commute his death sentence to imprisonment for life without the possibility of parole. A hearing was held before the Clemency and Pardons Board on March 12, 2009. At the conclusion of the hearing, the Clemency and Pardons Board voted 2-2 on a motion to recommend that the Governor deny Mr. Brown’s petition. The two members voting against the motion expressed general views that the death penalty is problematic as applied or should be abolished. A few hours later the Washington Supreme Court entered an order staying the execution.

After the stay was lifted and the execution scheduled, Governor Gregoire reviewed the petition and the materials submitted to the Board, the Verbatim Report of Proceedings of the Board’s March 12, 2009, hearing, a supplemental letter sent to the Governor by Cal Brown’s attorneys on September 1, 2010, and judicial records.

King5.Com

"Friend of Cal Brown's victim remembers Holly Washa ," by Owen Lei. (September 8, 2010 at 5:56 PM)

SEATTLE -- Cal Brown, a murderer on death row, is running out of options. His execution is scheduled just after midnight Friday. Meantime, a friend of his victim, Holly Washa, has been waiting almost two decades to see justice. "She had the biggest blue eyes," said Kim Bowen, who said the 22-year old moved to Washington to pursue her dream of being a flight attendant. "She just had this great strength about her, coming straight off a farm. I mean, straight off a farm, in Ogallala, Nebraska."

On Wednesday, Brown lost three chances to stop his impending execution. Late in the afternoon, the State Supreme Court denied a request for an emergency stay, 8-to-1. Brown had claimed his mental illness (bipolar disorder) was improperly downplayed during his sentencing.

An hour earlier, Governor Chris Gregoire also denied clemency Wednesday, saying she would not intervene in the execution. And in the morning, a King County Superior Court judge upheld her Tuesday ruling against Brown's claim that his mental illness made him unfit to stand trial in the first place.

Bowen's hope is that this means, after Friday, she will no longer have to picture Cal Coburn Brown, 55. "Whether he's lived his life in prison, he's still lived another 18 years," Bowen said. "She could have had a family. She could have been married. We would have loved to have her here with us."

Brown kidnapped Washa back in 1991. He tortured and raped her over a period of 36 hours at a SeaTac motel before killing her and leaving her body in her own car in a nearby park-and-ride. He was arrested after a similar incident in Palm Springs, Calif., where he confessed to Washa's murder. In 1993, a jury convicted him. He was sentenced to the death penalty.

But on March 12, 2009, about eight hours before the execution was to be carried out, it was put on hold over the constitutionality of the lethal injection method. Brown and his attorneys are still trying to prevent him from being the first convict executed in Washington since 2001, and just the fifth since 1963.

They maintain his bipolar disorder was never given enough weight during his trial and sentencing. They also claim the Washington State Department of Corrections staff isn't qualified to administer the state's new one-drug lethal injection. Among their remaining options: the U.S. Supreme Court has not yet decided if it will take up Brown's claim again the injection team, and Brown can still appeal today's King County ruling to the State Supreme Court.

Bowen hopes neither of those will happen. "It's well beyond time that the sentence be carried out," Bowen said. "It serves no purpose to grant him another stay [of execution]. There's no reason to do it. He needs to die."

Bowen leaves Thursday to attend the scheduled execution, she said. "It's not closure, but you're... moving on to the next phase of grieving," she said, "and that next phase is Cal Brown's gone, and now we don't have to think about him anymore, and we can just rejoice in who Holly was and hold onto her as people who love her."

State v. Brown, 132 Wash.2d 529, 940 P.2d 546 (Wash. 1997). (Direct Appeal)

Defendant was convicted in the Superior Court, King County, Ricardo S. Martinez, J., of aggravated first-degree murder and was sentenced to death. Defendant appealed. The Supreme Court, Smith, J., held that: (1) evidence supported finding of lack of sufficient mitigating circumstances to merit leniency; (2) proportionality review of death penalty was not void for vagueness; (3) statements by prosecutors did not constitute prosecutorial misconduct requiring new trial; (4) testimony of victim of crimes occurring after charged offenses was admissible other crimes evidence; (5) defendant's statements to California police were admissible even though recorded without defendant's knowledge; (6) trial court properly excused for cause potential jurors on basis of their views on death penalty; and (7) jury received adequate instructions from trial court. Affirmed. Madsen, J., filed an opinion concurring in part and dissenting in part joined by Alexander and Sanders, JJ.

SMITH, Justice.

Appellant Cal Coburn Brown upon direct review appeals his conviction and sentence for aggravated first degree murder. A jury in the King County Superior Court, after a finding of “guilty,” determined he did not merit leniency. The trial court then on January 18, 1994 sentenced Appellant to death as required by statute. We affirm the conviction and sentence.

QUESTIONS PRESENTED The following questions are presented by this appeal:

(1) Whether, under RCW 10.95, the capital punishment statute, (a) there was sufficient evidence to justify the affirmative finding by the jury that there were not sufficient mitigating circumstances to merit leniency; (b) the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant; (c) the sentence of death was brought about by passion or prejudice; or (d) the defendant was mentally retarded;

(2) Whether the proportionality review mandated by RCW 10.95.130 is void for vagueness under the Eighth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 14 of the Washington Constitution;

(3) Whether statements made by prosecuting attorneys during the guilt and penalty phases of the trial constituted prosecutorial misconduct which denied Appellant a fair trial;

(4) Whether the trial court erred in admitting the testimony of Ms. Susan J. Schnell, surviving victim in a criminal encounter with Appellant in California;

(5) Whether the trial court erred in admitting the testimony of Ms. Jan M. Gray and Ms. Brieanna C. West, who had noncriminal encounters with Appellant in California and Washington;

(6) Whether Appellant was adequately advised of his Miranda rights before making statements to Palm Springs, California police detectives;

(7) Whether Appellant's statements to Palm Springs, California police, which were recorded without his knowledge as permitted by California law, violated Washington's Privacy Act, RCW 9.73 et seq. , and thus were inadmissible in Washington courts;

(8) Whether there is before this court a record of “sufficient completeness” for adequate appellate review of the issues presented in Appellant's appeal;

(9) Whether the trial court erred in allowing prospective jurors to be “death qualified” during voir dire examination;

(10) Whether certain prospective jurors were properly excused for cause;

(11) Whether the terms “premeditation” and “intent” were sufficiently explained in the trial court's instructions to the jury;

(12) Whether the trial court properly instructed the jury concerning the aggravating factors in the case;

(13) Whether the trial court erred in refusing to give the jury certain instructions proposed by the defense in the penalty phase;

(14) Whether Appellant was properly served with the Notice of Special Sentencing Proceeding required by RCW 10.95.040(2);

(15) Whether Criminal Rule 4.7 (CrR 4.7) mandates reciprocal pretrial discovery of evidence relevant to the penalty phase in a capital case; and

(16) Whether the trial court erred in refusing to admit victim impact evidence in the penalty phase of the trial.

STATEMENT OF FACTS

On May 27, 1991, Memorial Day, King County police, following a telephone call from police detectives in Palm Springs, California, discovered the body of a twenty-one-year-old woman, Ms. Holly C. Washa, in the trunk of her 1985 blue Oldsmobile automobile parked in space 266 of a Budget Park and Ride lot near the Seattle-Tacoma Airport. She was wearing a leather jacket covered with blood, and the strap of her purse was tied and knotted tightly around her neck. The strap was sunken into the cavity of a deep slash wound across her neck.

The events surrounding Ms. Washa's death began on May 18, 1991 when the appellant in this case, Cal Coburn Brown, was in La Jolla, California at the Hyatt Regency Hotel. While in the hotel lounge, Appellant met Ms. Jan M. Gray from the Seattle area, who was in La Jolla with her mother on vacation. While socializing with Ms. Gray and her mother, Appellant told them he was an architect who built houses. He also told them he had trouble meeting single women. Ms. Gray mentioned that she had a single friend named Brieanna West who also lived in the Seattle area and who had similar problems meeting single men. After some coaxing by Appellant, Ms. Gray telephoned Ms. West and arranged a blind date for them in Seattle.

On May 20, 1991, Appellant traveled by air to Seattle. En route, there was a scheduled stop in Ontario, California, where Ms. Susan J. Schnell boarded for a business trip to Lewiston, Idaho. Appellant and Ms. Schnell, who were sitting near each other, began talking during the flight. She found him friendly and interesting. He told her he was a “home designer” and spoke with an Australian accent. He also told her he wanted to see her again. She gave him her home and business telephone numbers and the name of the hotel where she would be staying in Lewiston. That same evening Appellant met with Ms. Brieanna C. West for drinks at the Seattle-Tacoma Red Lion Inn. She found him physically unattractive and did not want to see him again. Appellant stayed at the Red Lion Inn that night and Ms. West returned to her apartment.

Appellant telephoned Ms. Susan J. Schnell in Idaho at 9:00 p.m. the next evening and asked her if she could spend some time with him in Seattle. She told him she planned to fly back to California the next day, May 22, 1991, and would be in Seattle on a brief layover. She and Appellant made plans to meet at the Seattle-Tacoma Airport during her layover. Appellant then telephoned the Shadow Motel in the airport area and made arrangements to leave his luggage there. He told an employee of the motel he had met a woman and was going to fly to Palm Springs to meet with her again.

On May 22, 1991, Appellant met with Ms. Schnell at the Seattle-Tacoma Airport for dinner. They discussed getting together in Palm Springs for the upcoming Memorial Day weekend. Without making definite plans, Ms. Schnell took her flight back to Ontario, California. Later that evening, Appellant telephoned Ms. Schnell in California and arranged to spend Memorial Day weekend with her in Palm Springs.

Appellant's Statement to Police

On May 27 and 28, 1991, Appellant made statements to police detectives in Palm Springs, California in three interviews which were recorded without his knowledge. In his statements he related in calm, deliberate, clear, graphic and specific detail a narrative of his activities, with few questions from the detectives, who courteously allowed him to relate his story.FN1 His statements may fairly be characterized as admissions or confessions.FN2

FN1. A critical issue in this appeal is admissibility of the audio tapes admitted as State's Exhibit 89.

FN2. See Black's Law Dictionary: Confession (“A voluntary statement made by a person charged with the commission of a crime ..., communicated to another person ... [acknowledging oneself] to be guilty of the offense charged, and [disclosing] the circumstances of the act or the share and participation [the person charged] had in it.”) Admission (“[T]he avowal of a fact or of circumstances from which guilt may be inferred, but only tending to prove the offense charged, and not amounting to a confession of guilt.”)

On the morning of May 23, 1991, Ms. Holly C. Washa was at the Wyndham Garden Hotel near the Seattle-Tacoma Airport where she had just quit her part-time job. As she was driving out of the parking lot in her 1985 Oldsmobile, Appellant pointed to one of the tires on her automobile suggesting something was wrong. She stopped. Appellant then forced his way into her automobile, stuck a knife FN3 in her face, and grabbed her by the hair. He demanded that she “drive or die,” and began rummaging through her purse for money. Finding only a small amount of change, he looked at her checkbook. He then forced her to write a check for $350.00, the entire balance in her checking account. They went through the drive-up window at a Seafirst Bank in Federal Way and cashed the check. Then they went to the Seattle waterfront area where Appellant tied Ms. Washa's hands behind her back with her purse strap and forced her into the passenger seat of her automobile. He asked her several questions concerning her schedule on a typical day, who her roommates were and what they did.FN4 He then purchased some handcuffs at a gun shop while leaving Ms. Washa tied up in the automobile.FN5

FN3. The “knife” referred to throughout this narrative was actually an all-purpose tool, with the brand name “Leatherman,” which contained multiple folding implements, including a knife blade.

FN4. Ex. 89, tape 1, side 2.

FN5. Ex. 89, tape 2, side 1.

After purchasing the handcuffs, Appellant took Ms. Washa back to his room at the Shadow Motel where he paid for an extra night. He demanded that she remove all her clothing, after which he tied her to the bed with his neckties and her purse strap. He cut up her shirt and stuffed it into her mouth for a gag. He then ordered her to get dressed again and took her to get something to eat. While at a Burger King drive-through, he held the knife in a threatening position where she could see he might use it. Upon their return to the motel room, he ordered her to remove her clothing and lie face down on the bed. He also told her not to scream or do anything. Appellant said Ms. Washa began fellating him, which he took as her consent for sexual activity. FN6

FN6. Ex. 89, tape 1, side 2.

Appellant then engaged in sexual intercourse with Ms. Washa for about two hours, during which time he noticed she was looking at the door and possibly thinking of escape. Appellant decided it was time “to have a little control, ... make her a little more scared of me, basically.” He then tied her in a face up, spread eagle position, with her hands behind her back and her mouth gagged, and whipped her “maybe half a dozen times....” FN7

FN7. Ex. 89, tape 2, side 1.

Appellant allowed Ms. Washa to get dressed again, tied her hands behind her back, and drove her to Federal Way for pizza. When they returned to the motel, Appellant again forced her to undress and tied her to the bed in a face down, spread eagle position with her hands tied behind her back. He then had sexual intercourse with her again. At about 11:00 p.m. that evening, he telephoned Ms. Susan J. Schnell in California to reconfirm their weekend plans in Palm Springs. After that, he crawled into bed with Ms. Washa, who was still bound and gagged, and they “dozed.” FN8

FN8. Ex. 89, tape 2, side 1.

The next day, Friday, May 24, 1991, Appellant forced Ms. Washa to drive him to her apartment where he hoped to find checks belonging to her roommates that he could forge. He found some checks and attempted to cash them in $500.00 amounts, but was thwarted when the banks wanted to compare signatures with signature cards on file. Appellant became irritated with Ms. Washa when the check-cashing plan did not go as he had hoped. She began to drive somewhat erratically, making him even angrier.FN9

FN9. Ex. 89, tape 2, side 1.

When they returned to the motel, Appellant again tied Ms. Washa to the bed face down in a spread eagle position with her hands handcuffed behind her back and her mouth gagged with a washcloth. He penetrated her vaginally and anally with an aftershave lotion bottle.FN10 He shaved her pubic hair and held a hot hair dryer close to her vagina, breasts and stomach. He also shocked her by using an electric extension cord with the end cut off. He described these acts as “torture” and acknowledged that the electric shock was particularly painful.FN11

FN10. Ex. 89, tape 2, side 2.

FN11. Ex. 89, tape 1, side 2.

At 8:45 on the evening of May 24, 1991, Appellant left for the Seattle-Tacoma Airport to embark on his trip to California. He forced Ms. Washa into the trunk of her blue 1985 Oldsmobile automobile with her hands handcuffed behind her back and drove to the Doug Fox Travel Agency parking lot where he momentarily parked the automobile. Because shuttle buses were driving around the lot, Appellant was concerned that someone might discover Ms. Washa since “she could just bang and clang and crunch and scream and be out very quickly.” FN12 He then went to the trunk and cut her throat with “three swipes” and stabbed her several times in the chest and abdominal areas. FN13 Because Ms. Washa's blood began leaking from the trunk of the automobile, Appellant moved from the Doug Fox lot to the Budget Park and Ride lot near Shumsky's Restaurant in the airport area. He told detectives:

FN12. Ex. 89, tape 2, side 1.

FN13. Ex. 89, tape 3, side 1.

I was going to do her at one place and leave her there and the blood started coming out from underneath the car.... So I panicked and left that place and drove around to a different place ... with all the rain and stuff it would just wash away and it wouldn't show.FN14

FN14. Ex. 89, tape 1, side 2.

Appellant told detectives he killed Ms. Washa because he did not want to leave any witnesses alive. He also told them he kidnapped her because he needed money to get to California and “didn't like the idea of waltzing into a bank with my face, you know, all over the place.” He also stated he was “going to rob somebody and let 'em go but then I just realized ... after I did it that it would just be the same as waltzing into a bank and have my picture taken.” FN15

FN15. Ex. 89, tape 1, side 2.

Appellant also told his Oregon parole officer, Larry Wibbenmeyer, in a telephone conversation on May 28, 1991 that he took Ms. Washa's life at the last minute. He described his actions as resulting from “panic.”

Events in California

Appellant telephoned Ms. Susan J. Schnell from the airplane while en route to California to confirm the time he would meet her at a hotel near the Ontario Airport. Upon arrival there he had some drinks and later checked into a hotel. Appellant and Ms. Schnell met at about noon the next day, Saturday, May 25, 1991, and drove in her sports car to Palm Springs where they checked into a Ramada Inn. They had planned to stay in separate bedrooms, but because of a reservation mix-up, they had to stay in the same room with only one bed. They slept in the bed that night but did not have intercourse.

Appellant and Ms. Schnell spent Sunday, May 26, 1991, touring the Palm Springs area together. She was driving her burgundy red 1981 Corvette sports car. Upon returning from dinner around midnight, they began kissing and fondling. Appellant performed cunnilingus on Ms. Schnell and then offered to give her a back rub. Appellant straddled her while she lay face down on the bed. Suddenly he violently jerked her arms back and told her not to scream. When she did, he slit her throat. As she continued to scream, Appellant restrained her with handcuffs and brought the knife around to her chest and threatened her with it. She saw the knife. He told her he just wanted her money. Appellant repositioned Ms. Schnell on the bed and tied her to it, using her pantyhose. He shaved her pubic hair and, raped her vaginally and orally. He then ordered her to write him a check for $4,000.00, which she had difficulty completing to his satisfaction until her third attempt.

Appellant became concerned about Ms. Schnell's bleeding and told her he was going out for medical supplies. He tried to gag her with a sock and restrain her arms above her head, but abandoned the effort when she began coughing up blood. Her feet, however, remained handcuffed to the bed. While he was gone, she was somehow able to reach the telephone and call the desk clerk. Palm Springs police arrived and took a description of Appellant from Ms. Schnell.FN16

FN16. She was taken to the hospital for emergency surgery. She survived and testified as a witness in the King County trial.

When Palm Springs police officer Glen Haas saw a man who fit Appellant's description in the hotel parking lot, near a red Corvette sports car, he drew his firearm and told him to stop and put his hands up. Appellant identified himself as “Cal.” Officer Haas asked him where the knife was, and Appellant responded “in my right front pocket.” When asked his last name, Appellant replied “Brown.” Officer Haas then arrested Appellant on suspicion of attempted murder.

After being processed by the Palm Springs police, Appellant was interviewed by Detective Mark Harvey and his partner, Detective Al Franz. Three interviews took place between May 27 and May 28, 1991, with the first two initiated by the detectives and the third initiated by Appellant. Before each interview, Appellant was read his Miranda rights, stated he understood them, and agreed to talk with the detectives. Each interview was tape recorded without Appellant's knowledge or consent. During the first interview, Appellant in specific detail admitted his attack upon Ms. Schnell. Later in that interview, he admitted killing Ms. Washa before coming to Palm Springs. He told the detectives where the killing took place in Washington and where Ms. Washa's automobile could be found. The Palm Springs police immediately contacted King County police who dispatched local officers to the Budget parking lot near the Seattle-Tacoma Airport where they located the 1985 blue Oldsmobile in space 266 with Ms. Washa's body in the trunk. Appellant still had the keys to Ms. Washa's automobile in his possession.

Based upon his behavior with Ms. Schnell, Appellant pleaded “guilty” in California to attempted murder in the first degree, aggravated mayhem, torture, robbery in the first degree, and false imprisonment. On November 26, 1991 he was sentenced to life imprisonment in that state.

Corroborating Evidence

King County Medical Examiner Donald T. Reay, M.D. performed an autopsy on Ms. Holly C. Washa. He concluded her death was caused by an extensive incised wound to her neck and strangulation by a ligature with a very rigid knot. He also noted that both stabbing and slicing occurred in the throat, requiring at least two motions to inflict the incised wound. It was his opinion that the hemorrhages in her eyes indicated the strangulation occurred first.

In addition to the lethal injuries, Dr. Reay described other trauma to Ms. Washa's body. Her pubic hair had been shaved. Her face was severely bruised. Both the inside and outside of her vaginal area were bruised. There was also bruising around her anus. The vaginal and anal injuries indicated forcible penetration with a hard object consistent with an aftershave bottle belonging to Appellant found in his Palm Springs hotel room. Her nipples showed abrasions and a linear pattern of bruising consistent with being whipped by a belt or cord. Similar bruising was found on her inner thigh, which also indicated whipping. Her feet and ankles were covered with bruises consistent with having been restrained. Her chest and abdomen had multiple stab and slicing wounds. An “irregular blemish-like area of red drying” on her inner thigh indicated burning. The stab wounds were consistent with the knife blade of the Leatherman tool Appellant had in his pocket when he was arrested. FN17

FN17. The State also presented corroborating witness testimony and physical evidence. See Br. of Resp't at 24-27.

Appellant was charged by information on June 11, 1991 in the King County Superior Court with aggravated murder in the first degree. He was arraigned on February 26, 1992. A notice to determine whether the death penalty should be imposed was filed on March 24, 1992. He was tried by jury before the Honorable Ricardo S. Martinez. The trial began with jury selection on October 25, 1993. Guilt phase testimony began on November 30, 1993. On December 10, 1993, the jury returned a verdict of “guilty” of premeditated murder in the first degree, finding that Appellant committed the murder to conceal commission of a crime or to protect or conceal his identity; and found aggravating circumstances of robbery in the first or second degree, rape in the first or second degree and kidnapping in the first degree. The penalty phase of the trial began on December 15, 1993, and on December 27, 1993, the jury returned a verdict finding there were not sufficient mitigating circumstances to merit leniency. The trial court on January 28, 1994 imposed upon Appellant a sentence of death.

DISCUSSION
Statutory Review

(1) Whether, under RCW 10.95, the capital punishment statute, (a) there was sufficient evidence to justify the affirmative finding by the jury that there were not sufficient mitigating circumstances to merit leniency; (b) the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant; (c) the sentence of death was brought about by passion or prejudice; or (d) the defendant was mentally retarded.

(2) Whether the proportionality review mandated by RCW 10.95.130 is void for vagueness under the Eighth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 14 of the Washington Constitution.

Under our capital punishment statute, RCW 10.95, this court must review a death sentence imposed by a trial court to determine (a) whether there was sufficient evidence to justify the affirmative finding by the jury that there were not sufficient mitigating circumstances to merit leniency; (b) whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant; (c) whether the sentence of death was brought about by passion or prejudice; and (d) whether the defendant was mentally retarded.FN18 This review is in addition to the basic review on appeal.FN19

FN18. RCW 10.95.130(2)(a), (b), (c), and (d).

FN19. RCW 10.95.130(1).

Sufficiency of the Evidence

In the sentencing phase the jury in this case concluded the State had proved beyond a reasonable doubt that there were not sufficient mitigating circumstances to merit leniency for Appellant Brown.FN20 In deciding whether there is sufficient evidence to support that conclusion, this court must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found sufficient evidence to justify that conclusion beyond a reasonable doubt.FN21

FN20. Clerk's Papers at 1594 (Verdict Form).

FN21. State v. Pirtle, 127 Wash.2d 628, 682, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026, 116 S.Ct. 2568, 135 L.Ed.2d 1084 (1996).

At the penalty phase of his trial, Appellant offered mitigating evidence for the jury to consider in determining his sentence. He presented the testimony of family members who observed that Appellant's mother did not appropriately bond with or “attach” to him as an infant and seemed frustrated and impatient when interacting with him.FN22 There was testimony that Appellant suffered a traumatic birth experience,FN23 appeared “agitated” as an infant, and began to display behavior characterized as “out of bounds” by the age of two or three.FN24 As Appellant grew, his difficult behavior had the effect of putting people off, causing them to reject and avoid him. FN25 Testimony was also offered concerning his mother's five marriages, FN26 the second of which reportedly involved physical and psychological abuse of both Appellant and his mother.FN27 The main focus of Appellant's mitigating evidence was testimony by psychologist Dr. Roland D. Maiuro, Ph.D., who diagnosed Appellant as suffering from anti-social personality disorder, sexual sadism, and manic syndrome.FN28 Dr. Maiuro was of the opinion that Appellant also suffered from attention deficit disorder and conduct disorder as a child,FN29 perhaps as a result of the trauma he suffered at birth.FN30 He also testified that records of lithium therapy while Appellant was in prison in Oregon indicated the drug produced some progress in stabilizing his manic mood disorder, but concluded the state of Oregon did not adequately monitor Appellant's continued use of lithium after he was paroled.FN31

FN22. Report of Proceedings, December 16, 1993 at 31-32.

FN23. Report of Proceedings, December 17, 1993 at 24. Appellant was born April 16, 1953.

FN24. Report of Proceedings, December 16, 1993 at 31, 33.

FN25. Id. at 32-36.

FN26. Id. at 127-29.

FN27. Report of Proceedings, December 17, 1993 at 25-27.

FN28. Id. at 30.

FN29. Id.

FN30. Id. at 67.

FN31. Report of Proceedings, December 20, 1993 at 43-44; Report of Proceedings, December 17, 1993 at 70.

Viewing all the evidence in a light most favorable to the prosecution, a rational trier of fact could have found sufficient evidence to support the jury's conclusion that leniency was not merited in this case. The jury could well have discounted evidence of Appellant's difficult childhood and troubled family life as mitigating factors. Appellant raped, tortured and murdered twenty-one-year-old Holly Washa. Considering such a heinous crime, a rational trier of fact could have concluded that a difficult childhood and troubled family life, faced by many persons who do not resort to criminal behavior, did not constitute sufficient mitigation to deserve leniency in this capital case.

The State offered rebuttal testimony of a psychiatrist, Dr. John R. Brinkley, M.D., who concluded that Appellant does not suffer from organic brain damage. FN32 The jury could rationally have believed this testimony, which tended to rebut Appellant's suggestion that his behavioral problems can at least partially be explained by his birth trauma. Dr. Brinkley also testified, based upon his review of Appellant's Oregon prison records, that lithium did not seem to effectively alter Appellant's behavior and concluded he would not have prescribed lithium in Appellant's case.FN33 The jury could have rationally believed this testimony as well and discounted as a mitigating factor Appellant's assertion of irresponsibility on the part of the state of Oregon in monitoring his continued use of lithium. In any event, Appellant makes no persuasive argument that any inadequacy on the part of the State of Oregon in monitoring his drug therapy-which is his personal responsibility-mitigates in favor of leniency. The jury doubtless discounted Appellant's diagnosed personality disorders, since those disorders perhaps explained, but did not excuse, his violent behavior.FN34

FN32. Report of Proceedings, December 21, 1993 at 110-13.

FN33. Id. at 102-10.

FN34. See State v. Lord, 117 Wash.2d 829, 906, 822 P.2d 177 (1991) (upholding under RCW 10.95.130(2)(a) a jury's finding that antisocial personality disorder did not mitigate in favor of leniency for a capital appellant, noting that the disorder explained, but did not excuse, appellant's behavior) cert. denied, 506 U.S. 856, 113 S.Ct. 164, 121 L.Ed.2d 112 (1992); see also State v. Dodd, 120 Wash.2d 1, 25, 838 P.2d 86 (1992) (diagnosis of severe pedophilia did not merit leniency under RCW 10.95.130(2)(a)).

“The mere presence of mitigating factors does not require that the jury grant leniency, if the jurors are convinced that the circumstances of the crime outweigh the mitigating factors.” FN35 The jury in this case could reasonably have determined that none of the mitigating factors presented by Appellant were relatively persuasive against Appellant's brutal and tortuous treatment of Ms. Holly C. Washa. Under these circumstances, we conclude there was sufficient evidence to support the determination by the jury that leniency was not merited in this case.

FN35. Dodd, 120 Wash.2d at 25, 838 P.2d 86.

Proportionality Under RCW 10.95.130(2)(b), this court must conduct a proportionality review to determine:

Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. For the purposes of this subsection, “similar cases” means cases reported in the Washington Reports or Washington Appellate Reports since January 1, 1965, in which the judge or jury considered the imposition of capital punishment regardless of whether it was imposed or executed, and cases in which reports have been filed with the supreme court under RCW 10.95.120[.]

RCW 10.95.120 requires filing of reports “[i]n all cases in which a person is convicted of aggravated first degree murder.” This pool of similar cases includes those in which the death penalty was sought and those in which it was not.FN36

FN36. Lord, 117 Wash.2d at 907, 822 P.2d 177.

Appellant argues that the proportionality review mandated by RCW 10.95.130 is void for vagueness under the Eighth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 14 of the Washington Constitution.FN37 He cites in support of this claim the case of Harris ex rel. Ramseyer v. Blodgett, in which the United States District Court for the Western District of Washington held that Washington's proportionality review violates procedural due process because RCW 10.95.130 “does not establish adequate standards or guidelines on which the Court or the parties can rely.” FN38 However, as the State correctly points out, this court considered and rejected that argument in State v. BrettFN39 and in State v. Pirtle.FN40 Appellant Brown has not convinced us we should reexamine the issue in this case.

FN37. Br. of Appellant at 174.

FN38. Harris ex rel. Ramseyer v. Blodgett, 853 F.Supp. 1239, 1288 (W.D.Wash.1994), aff'd, Harris ex rel. Ramseyer v. Wood, 64 F.3d 1432 (9th Cir.1995).

FN39. State v. Brett, 126 Wash.2d 136, 207-09, 212, 892 P.2d 29 (1995), cert. denied, 516 U.S. 1121, 116 S.Ct. 931, 133 L.Ed.2d 858 (1996).

FN40. Pirtle, 127 Wash.2d at 683, 904 P.2d 245 (citing Brett ).

In conducting proportionality review the court is principally concerned with avoiding two systemic problems associated with imposition of capital punishment: random arbitrariness and imposition of the death sentence in a racially discriminatory manner.FN41 “Technical inconsistencies in a line-by-line comparison cannot be equated with those core concerns.” FN42 The focus in this case is on random arbitrariness. There is no claim of racial discrimination.FN43

FN41. State v. Gentry, 125 Wash.2d 570, 655, 888 P.2d 1105 (1995), cert. denied, 516 U.S. 843, 116 S.Ct. 131, 133 L.Ed.2d 79 (1995).

FN42. Lord, 117 Wash.2d at 910, 822 P.2d 177 (citing Pulley v. Harris, 465 U.S. 37, 54, 104 S.Ct. 871, 881, 79 L.Ed.2d 29 (1984)).

FN43. Both the appellant and the victim in this case are Caucasian.

Proportionality review under RCW 10.95 does not guarantee there will be no variations from case to case, nor that a sentence of death will be uniformly imposed in all superficially similar circumstances.FN44 Mathematical precision is unworkable FN45 and unnecessary. “There is no constitutional or statutory requirement to ensure an unattainable degree of identity among particular cases which are invariably unique.” FN46 Instead, we must determine whether a death sentence has been imposed generally in similar cases, and not imposed wantonly and freakishly.FN47 We have explored in prior cases the most effective way to reach this determination.FN48

FN44. Lord, 117 Wash.2d at 910, 822 P.2d 177.

FN45. Id.

FN46. Brett, 126 Wash.2d at 213, 892 P.2d 29.

FN47. State v. Harris, 106 Wash.2d 784, 798, 725 P.2d 975 (1986), cert. denied sub nom. Harris v. Washington, 480 U.S. 940, 107 S.Ct. 1592, 94 L.Ed.2d 781 (1987).

FN48. Compare Lord, 117 Wash.2d at 911, 822 P.2d 177 (suggesting a “family resemblances” approach) with State v. Benn, 120 Wash.2d 631, 680-693, 845 P.2d 289 (suggesting a statistically based approach).

Under the proportionality statute, RCW 10.95.130(b), this court must consider both “the crime and the defendant” in examining “similar cases.” FN49 In carrying this out, we examine four factors: (1) the nature of the crime, (2) the aggravating circumstances, (3) the defendant's criminal history and (4) the defendant's personal history.FN50

FN49. RCW 10.95.130(b).

FN50. Pirtle, 127 Wash.2d at 686, 904 P.2d 245.

(1) Nature of the Crime

The nature of the crime committed by Appellant Brown was particularly brutal. He kidnapped Ms. Holly C. Washa and robbed, raped and tortured her over a two-day period before killing her. He repeatedly raped her vaginally after he gagged and tied her to a bed in his motel room. At one point he used an aftershave bottle to rape her anally and vaginally. He whipped her naked body with a belt several times. He burned her on various parts of her naked body with a hot hair dryer. He shocked her on various parts of her naked body with the exposed end of an electric extension cord, which he acknowledged was quite painful. Appellant himself described these acts as “torture,” explaining that he wanted to gain control over Ms. Washa through intimidation. He strangled her, stabbed her, cut her throat with “three swipes” and left her to die in the trunk of her automobile. She was found dead.

Comparing the facts of this case with “similar cases” reported reveals the nature of this crime is at least as brutal and callous as any other considered by this court. A case fairly comparable to this one is State v. Dodd, in which we upheld imposition of the death penalty after proportionality review under RCW 10.95.130(2)(b).FN51 In conducting review in that case, the court considered the “extraordinarily vicious and cold-blooded manner” in which the appellant killed his victims, noting that two of them suffered for a significant time before their deaths.FN52 Although the Dodd case involved three victims instead of one, it also involved physical and mental torture of one of the victims over a prolonged period before death, in a manner similar to the torture inflicted upon Ms. Washa. The victim in Dodd, a four-year-old child, was raped and strangled over the course of an entire day, evening, and subsequent morning before he was killed. FN53 Ms. Washa's ordeal lasted two days.

FN51. Dodd, 120 Wash.2d at 27, 838 P.2d 86.

FN52. Id.

FN53. Id. at 8, 838 P.2d 86.

In State v. Gentry, this court found the death penalty was not disproportionate where the victim experienced terror while being chased through a wooded area before she was sexually assaulted and bludgeoned to death with a rock.FN54 While the duration of the victim's suffering in Gentry was unknown,FN55 the record in this case indicates Ms. Washa experienced substantial pain and terror for almost two days before she was killed by Appellant Brown.

FN54. Gentry, 125 Wash.2d at 657-58, 888 P.2d 1105.

FN55. Id. at 657, 888 P.2d 1105.

Comparing Ms. Washa's suffering to that endured by victims in other cases considered by this court shows that Appellant's crime is at least as vicious as those committed in other cases in which we upheld imposition of the death penalty after proportionality review.FN56 “A brutal murder involving substantial conscious suffering of the victim makes the murderer more deserving of the death penalty.” FN57

FN56. See, e.g., Report of the Trial Judge, State v. Rupe (single gunshot wound to head of the victims; no torture); Report of the Trial Judge, State v. Jeffries (multiple gunshot wounds; no torture); Report of the Trial Judge, State v. Benn (gunshot wound to the head of the victims; no torture); Report of the Trial Judge, State v. Harris (gunshot wound to the head and neck of the victim; contract killing; no torture).

FN57. Gentry, 125 Wash.2d at 657, 888 P.2d 1105.

(2) Aggravating Circumstances

The jury found Appellant “guilty” of premeditated first degree murder, specifying four aggravating factors. It found he committed the murder of Ms. Washa (1) to protect or conceal his identity; (2) in the course of, in furtherance of, or in immediate flight from robbery in the first or second degree; (3) in the course of, in furtherance of, or in immediate flight from rape in the first or second degree; and (4) in the course of, in furtherance of, or in immediate flight from kidnapping in the first degree. FN58 Only one aggravating factor is needed for imposition of the death penalty unless the person charged is found to be mentally retarded.FN59 There is absolutely no suggestion in the record that Appellant was retarded. He has tested in the gifted intelligence range (an I.Q. of 144). The aggravating factors found by the jury in this case sufficiently support our conclusion that Appellant's sentence of death is not disproportionate when compared to other cases in which the death penalty was imposed.FN60

FN58. Clerk's Papers at 1451-52 (Special Verdict Form B).

FN59. RCW 10.95.030(2).

FN60. See, e.g., Report of the Trial Judge, State v. Gentry (one aggravating factor: concealment of identity); Report of the Trial Judge, State v. Benn (one aggravating factor: multiple victims); Report of the Trial Judge, State v. Harris (one aggravating factor: contract murder); Report of the Trial Judge, State v. Jeffries (two aggravating factors: multiple victims, concealment of a crime).

(3) Criminal History

Appellant's death sentence is not disproportionate when his criminal history is considered. His record includes prior convictions for (1) assault with a deadly weapon, (2) grand theft, (3) attempted assault in the first degree, (4) assault in the second degree, (5) attempted murder in the first degree, (6) aggravated mayhem, (7) torture, (8) false imprisonment, and (9) robbery in the first degree.FN61 His criminal record shows a history of violence towards others. His criminal history is comparatively more extensive than that of other appellants who received the death penalty. FN62

FN61. Report of the Trial Judge, State v. Brown; Report of Proceedings, December 15, 1993 at 45-46.

FN62. See Report of the Trial Judge, State v. Rupe (no prior criminal convictions); Report of the Trial Judge, State v. Harris (two prior convictions: assault, manslaughter); Report of the Trial Judge, State v. Benn (many misdemeanors and three prior convictions: first degree theft, grand larceny, first degree theft).

(4) Personal History

The subjective factors in Appellant's personal history are not sufficient to override the circumstances and consequences of his crime. “The role of mitigation evidence is to reduce culpability for a crime that has already been proved.” FN63 Appellant's mitigation evidence ranged from testimony about his troubled and sometimes abusive family life to medical testimony concerning his diagnosed personality disorders.FN64 Although commonly asserted, a history of abuse as a child seldom affects the outcome of aggravated first degree murder cases.FN65 Also, we have upheld death sentences imposed on appellants with medically diagnosed personality disorders similar to, or more severe than, Appellant's.FN66

FN63. Pirtle, 127 Wash.2d at 688, 904 P.2d 245.

FN64. For a more detailed and thorough description of Appellant's mitigation evidence, see the discussion on “Sufficiency of the Evidence,” supra.

FN65. Pirtle, 127 Wash.2d at 688, 904 P.2d 245.

FN66. See, e.g., Dodd, 120 Wash.2d at 11, 838 P.2d 86 (severe homosexual pedophilia); Lord, 117 Wash.2d at 906, 822 P.2d 177 (antisocial personality disorder); State v. Rice, 110 Wash.2d 577, 592-96, 757 P.2d 889 (1988) (evidence presented of “deep personality disorder and disordered childhood,” but “no evidence of any organic central nervous system disease or intracranial abnormalities.”).

Conclusion on Proportionality Appellant's death sentence is not disproportionate to sentences imposed in similar cases. The factors employed by this court in considering both the “crime and the defendant” justify our conclusion that Appellant Brown's case is sufficiently similar to other cases in which the death penalty has been imposed and upheld on appeal. The nature of his crime is as brutal and heinous as any considered by this court. His criminal history is extensive and shows a pattern of violence towards others. The jury found numerous aggravating factors in convicting him of aggravated first degree murder. His mitigating evidence was doubtless not sufficient to convince the jury that he merited leniency, the consequence being that he would be sentenced to death. Under these circumstances, we conclude the death sentence imposed upon Appellant Brown was not disproportionate to the crime committed and that it was not wantonly and freakishly imposed.

Passion or Prejudice

Appellant Brown presents no independent argument that his sentence was the result of passion or prejudice. He claims only “the jury was not properly advised of the ‘crime’ it was asked to weigh against the mitigating factors,” and that the jury was not instructed “that the deterrence of others, the cost of incarceration, and the purely emotional response to ... the heinousness of the crime or the evil of the defendant should not be part of the weighing process.” FN67 From this Appellant somehow concludes the jury based its sentence upon an unfavorable emotional response to him and not upon reason. FN68 There is no evidence in the record to support that claim. We therefore conclude the jury's verdict in the sentencing phase was not based upon passion or prejudice.

FN67. Br. of Appellant at 179.

FN68. Id.

Mental Retardation RCW 10.95.030(2) proscribes imposition of capital punishment upon persons who were mentally retarded at the time they committed the crimes for which they are being sentenced. To be considered “mentally retarded” under the statute a person must have, among other things, “significantly subaverage general intellectual functioning,” which is defined as achieving an I.Q. of 70 or below.FN69 Appellant does not claim he is mentally retarded. Nor is there even the slightest evidence to support such a claim. To the contrary, the record shows he had a measured I.Q. of 144 in the seventh or eighth grade, placing him at a gifted level of intelligence.FN70

FN69. RCW 10.95.030(2)(a), (c).

FN70. Report of Proceedings, December 20, 1993 at 114.

Prosecutorial Misconduct (3) Whether statements made by prosecuting attorneys during the guilt and penalty phases of the trial constituted prosecutorial misconduct which denied Appellant a fair trial.

Appellant claims the prosecuting attorney engaged in prosecutorial misconduct which deprived him of a fair trial. He cites instances in which he claims the prosecutor made personal or emotional appeals to the jury. Where prosecutorial misconduct is claimed, the defense bears the burden of establishing the impropriety of the prosecuting attorney's comments and their prejudicial effect.FN71 To establish prejudice, the defense must demonstrate there is a substantial likelihood the misconduct affected the jury's verdict.FN72

FN71. State v. Russell, 125 Wash.2d 24, 85, 882 P.2d 747 (1994).

FN72. Pirtle, 127 Wash.2d at 672, 904 P.2d 245.

A prosecuting attorney's allegedly improper remarks must be reviewed in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury. FN73 Failure to object to an improper comment constitutes waiver of error unless the comment is so flagrant and ill-intentioned that it causes an enduring and resulting prejudice that could not have been neutralized by a curative instruction to the jury.FN74 “Reversal is not required if the error could have been obviated by a curative instruction which the defense did not request.” FN75

FN73. Id. at 85-86, 882 P.2d 747.

FN74. Id. at 86, 882 P.2d 747.

FN75. Russell, 125 Wash.2d at 85, 882 P.2d 747.

Opening Statement (Guilt Phase) Appellant first complains of two statements made by the prosecuting attorney during the State's opening statement in the guilt phase of the trial. In suggesting the jury could come to know the deceased Ms. Holly C. Washa only through the testimony of witnesses, the prosecutor stated:

I've sort of lived with Holly [Washa] over the last two years or so preparing for this case, and perhaps I've personalized her a little bit. Maybe by the time this trial is over, you will know enough about her that maybe you'll personalize her a little bit. The one thing I do hope though is that justice can be done by the end of this trial and we can put Holly [Washa] to rest.

The defense did not object to this statement.

Near conclusion of the State's opening statement, the prosecutor stated:

I want to assure you at the end of this case you're not going to look at me and say, “Did he do it?” I suggest you're going to look at me and you're going to say, “How could he have done it?” And, you know, that's one question that I won't be able to answer for you. I don't have to answer it for you. I can't imagine how any person could have done this to Holly Washa or to any other living human being. How could he have done it?

The defense did not object to this comment.

Upon conclusion of its opening statement, the defense moved for a mistrial based upon the prosecuting attorney's personalized and emotional appeal to the jury in his opening statement. The defense in the alternative requested a remedial instruction to the jury. The trial court denied the motion for mistrial, but did instruct the jury that “counsels' opinions, statements, whatever else they say in openings are certainly not evidence.”

Denial of a motion for mistrial for alleged prosecutorial misconduct lies within the sound discretion of the trial court.FN76 This court will not disturb that decision absent an abuse of discretion.FN77 Here, the trial court did not abuse its discretion because the prosecutor's statements were not improper. Even assuming they might have been improper, there was no prejudice to Appellant. Besides, the court timely instructed the jury it was not to consider counsel's opinions or statements as evidence.

FN76. Id. at 86, 882 P.2d 747.

FN77. Id.

Appellant has not sustained his burden of establishing that either of the statements were improper. The first statement was introductory in nature and focused on the prosecutor's preparation for trial. The second statement merely informed the jury what the state's evidence was expected to show. There is no indication either statement was made to elicit an emotional response from the jury. Neither was improper.

Assuming the two statements might have been improper, Appellant has not established he was prejudiced by either of them. The context in which they were made demonstrates that Appellant suffered no prejudice which would have affected the jury's verdict. The trial court properly instructed the jury that remarks by counsel in opening statements were not evidence. In fact, the defense made similar remarks in its opening statement. Defense counsel told the jury that “like the [prosecution] has personalized this case for a couple of years with Holly Washa, we have done so with Mr. Brown....” Defense counsel also stated in the jury's presence that Appellant's killing of Ms. Washa was “incredibly horrible, brutal and bizarre” and asked the jury how any person could be so “twisted, so full of bottled up rage to commit this type of crime.” Appellant now claims error by the State for less provocative statements than those made by his own counsel in opening statement. This weakens the claim the remarks of the prosecutor were prejudicial and resulted in denial of a fair trial for Appellant.FN78

FN78. See Russell, 125 Wash.2d at 89, 882 P.2d 747 (incorporation of improper statements made by prosecuting attorney into defense argument weakened defendant's contention the statements denied him a fair trial).

Closing Argument (Guilt Phase) Appellant Brown next takes issue with two statements made by the prosecuting attorney during closing argument in the guilt phase of the trial.

The first statement was made near the beginning of the State's closing argument when the prosecutor referred to Appellant's motive for murdering Ms. Washa: “He saw Holly Washa as a vehicle for getting cash so that he could get to Susan Schnell.” The trial court overruled a defense objection.

The second statement was made later in closing argument when the prosecuting attorney was urging the jury to reject the lesser included offense of murder in the second degree. The prosecutor asked the jury not to “negotiate” with Appellant:

The defendant does not deserve a compromise. You should not negotiate with Cal Brown. You should not even think about negotiating with Cal Brown. Cal Brown didn't allow Holly Washa to negotiate with him. She didn't get to negotiate for her life. She didn't get to negotiate for her money. She didn't get to negotiate for her dignity. You should refuse any thought of negotiating with Cal Brown.

Defense counsel objected to this statement. The trial court overruled the objection and reminded counsel the jury had been instructed that counsel's statements were argument and not testimony or evidence.

The defense moved for a mistrial at the conclusion of the State's closing argument, claiming the prosecutor's statements improperly appealed to the passion or prejudice of the jury. The defense in the alternative requested a curative instruction to the jury. The trial court denied the defense motion and noted, out of the presence of the jury, that “the argument of counsel [for the prosecution] was within reasonable bounds. The jury has been instructed.... They have been told the arguments of counsel are not testimony, not evidence.”

The trial court did not abuse its discretion in denying the defense motion for a mistrial. The prosecuting attorney's statements were not improper. “In closing argument a prosecuting attorney has wide latitude in drawing and expressing reasonable inferences from the evidence.” FN79 Both statements complained of were reasonably supported by evidence admitted in trial. Appellant admitted in his recorded statement to California police officers that he kidnapped Ms. Washa because he was out of money and wanted to rob her so he could go to California. He also admitted he forced her to write and cash checks for him. Under this evidence, it was reasonable for the prosecuting attorney to state in closing argument that Appellant had a financial motive for abducting Ms. Washa. Similarly, there was substantial evidence to support the prosecuting attorney's argument to the jury that the lesser included offense of second degree murder would not be appropriate in Appellant's case. Counsel's description of the lesser included offense as a “compromise,” while overly simplistic, did not constitute misconduct. Both statements were fair comments on the evidence. Any prejudicial effect was minimized by the court's instruction to the jury.

FN79. Gentry, 125 Wash.2d at 641, 888 P.2d 1105.

Rebuttal Closing Argument (Guilt Phase) Upon completion of the prosecuting attorney's rebuttal closing argument, the defense moved for a mistrial, claiming three instances of misconduct.

The first instance was when the prosecuting attorney described as “ludicrous” the defense claim that Ms. Holly C. Washa had been asleep in Appellant's motel room while he made telephone calls to Ms. Susan J. Schnell and for airline reservations. Defense counsel's objection to this characterization was overruled. The defense made the claim in response to the State's theory that Appellant killed Ms. Washa to prevent her from informing the police of his future plans and whereabouts. The defense argued it was not necessary for Appellant to eliminate Ms. Washa as a witness because she was asleep during the telephone calls and was thus not aware of his plans. The remark by the prosecuting attorney was not improper. “It is not misconduct ... for a prosecutor to argue that the evidence does not support the defense theory.” FN80 As an advocate, the prosecuting attorney is entitled to make a fair response to the arguments of defense counsel. FN81 The prosecutor's characterization of the defense theory as “ludicrous” was reasonable in light of the evidence. Appellant admitted raping and torturing Ms. Washa over a prolonged period of time. It was the prosecution's contention that, under those circumstances, she was not likely asleep while Appellant was anywhere nearby. The use of the word “ludicrous” was simply editorial comment by the prosecuting attorney which was a strong, but fair, response to the argument made by the defense.

FN80. Russell, 125 Wash.2d at 87, 882 P.2d 747.

FN81. Id.

The second instance was the prosecuting attorney's characterization of Appellant as one who needs to “control.” The evidence at trial supports that characterization. Appellant himself said in his recorded statement that he used torture to gain “control” over Ms. Washa. From this evidence alone the prosecuting attorney could reasonably draw and express the inference that Appellant used control to accomplish his purposes. Under these circumstances, use of the word “control” was not improper.

The third instance focuses on the prosecutor's use of transcripts of Appellant's recorded statements to the Palm Springs police officers. Appellant argues it was improper for the prosecuting attorney to read from the transcripts of the tapes during rebuttal because only the tapes, and not the transcripts, were admitted into evidence. This argument is without merit.

The jury was informed the transcripts were not evidence of Appellant's statements. When the jurors listened to the tapes during trial, they were provided with transcripts to assist them in following the words. They were instructed at that time, however, that the words on the tapes, not the transcripts, were evidence of Appellant's statements, and that any inconsistency between the two should be resolved by reference to their collective memory of the contents of the tapes. They were reminded of this instruction again by the court after a sidebar conference requested by the defense immediately prior to reference to the transcripts by the prosecuting attorney. Under these circumstances, it was not improper for the prosecuting attorney to repeat portions of Appellant's statements by reading from the transcripts. Because the actual tapes were admitted into evidence at trial, as State's Exhibit 89, Appellant was not prejudiced by any reference to portions of his statements during rebuttal since the jury had already heard the tapes. The trial court's denial of the motion did not constitute an abuse of discretion because none of the prosecuting attorney's statements or actions during rebuttal were improper.

Closing Argument (Penalty Phase) Appellant claims the prosecuting attorney made two statements during closing argument in the penalty phase of the trial which constituted misconduct. The first was near the beginning of the state's closing argument when the prosecuting attorney stated:

The legislature enacted the death penalty law so that it would be used in the most serious murder cases. So that in cases where the crime calls out for a death sentence, the jury, in its discretion and its common sense and its good judgment, would impose such a sentence. I suggest to you that this crime screams out for the death sentence.

(emphasis added).

Near the conclusion of the prosecutor's rebuttal closing argument, the prosecuting attorney stated:

I talk about reasons why the death penalty is appropriate. And one of the reasons it is appropriate, is just exactly the acts that he [Appellant] carried out, that is one of the reasons it's appropriate.

If the death penalty is not appropriate in this case, I'd ask you to try to think of a case that it would be appropriate in, considering his acts, considering his evil.

(emphasis added).

Because the defense did not object to either statement, this court will consider any error waived unless either remark was so flagrant and ill-intentioned that it caused an enduring and resulting prejudice that could not have been neutralized by a curative instruction to the jury.FN82 Reversal is required only if there is a substantial likelihood either statement affected the jury's verdict.FN83

FN82. Id. at 86, 882 P.2d 747.

FN83. Id.

Both statements were supported by the evidence and thus were not improper. Appellant was convicted of committing a brutal murder with several aggravating factors. There was overwhelming evidence to support his conviction. Under these circumstances, the prosecuting attorney had wide latitude to make the argument that the evidence strongly supported imposition of the death penalty.FN84 While the words used to make that argument (such as “screams out” and “evil”) may be somewhat dramatic, they do not constitute misconduct warranting reversal in this case.

FN84. See Gentry, 125 Wash.2d at 641, 888 P.2d 1105.

Testimony of Susan J. Schnell (4) Whether the trial court erred in admitting the testimony of Ms. Susan J. Schnell, surviving victim in a criminal encounter with Appellant in California.

Evidence Rule 404(b) Appellant claims the trial court erred in admitting the testimony of Ms. Susan J. Schnell under ER 404(b) in both the guilt and penalty phases of his trial. He argues that the reasons offered by the trial court for admitting the testimony were not adequate and that admission of the evidence violated his double jeopardy rights.

Prior to trial Appellant sought to exclude Ms. Schnell's testimony as inadmissible character evidence under ER 404(b). Acknowledging that the testimony was prejudicial to Appellant, the trial court concluded its probative value substantially outweighed any unfair prejudice. The court ruled the testimony was admissible because it placed in context the crime for which Appellant was charged by describing the “fabric of events” or “ res gestae ” surrounding Ms. Holly C. Washa's murder. It also found the testimony was probative of intent, premeditation and the aggravating factors.

Appellant asked the trial court to reconsider its ruling admitting Ms. Schnell's testimony. The court adhered to its prior ruling and reemphasized the testimony was admissible as res gestae evidence and was probative of motive, intent and premeditation. It noted the testimony was also probative of the issue whether Appellant's acts constituted a common scheme or plan. The court again acknowledged the prejudicial nature of the testimony, but concluded its probative value far outweighed any unfair prejudice.

Just before Ms. Schnell testified during the guilt phase of the trial, the court did, however, instruct the jury concerning the limited basis for admitting her testimony. The court stated:

Ladies and gentlemen, regarding the evidence you are about to hear, the Court advises you now that you may consider evidence of the defendant's conduct towards Ms. Susan J. Schnell only insofar as it bears on the issues of premeditation, intent and the four aggravating factors charged in the crime against Ms. Washa. You may not consider such evidence for any other purpose. In particular you must not use it to draw a conclusion about the defendant's character or propensity to commit criminal acts.

(emphasis added).FN85

FN85. Report of Proceedings, December 6, 1993 at 104-105.

Jury Instruction 8, given by the court, was substantially similar to that oral instruction.FN86

FN86. See Clerk's Papers at 1420.

ER 404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

[Under Evidence Rule 404(b) evidence of other misconduct is not admissible to show a defendant is a “criminal type.” FN87 However, crimes or misconduct other than the acts for which a defendant is charged may be admitted for other reasons.FN88 In addition to the non-exhaustive list of exceptions identified in Rule 404(b) itself, this court has recognized a res gestae or “same transaction” exception to the rule. FN89 Under this exception, evidence of other crimes or misconduct is admissible to complete the story of the crime by establishing the immediate time and place of its occurrence.FN90 Where another offense constitutes a “link in the chain” of an unbroken sequence of events surrounding the charged offense, evidence of that offense is admissible “in order that a complete picture be depicted for the jury.” FN91 Additionally, the rule itself allows evidence of other misconduct to establish motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. FN92

FN87. State v. Lough, 125 Wash.2d 847, 853, 889 P.2d 487 (1995).

FN88. Id.

FN89. State v. Lane, 125 Wash.2d 825, 831, 889 P.2d 929 (1995).

FN90. Id.

FN91. State v. Tharp, 96 Wash.2d 591, 594, 637 P.2d 961 (1981).

FN92. ER 404(b); see also State v. Powell, 126 Wash.2d 244, 258, 893 P.2d 615 (1995) (citing exceptions).

To admit evidence of other crimes or misconduct under ER 404(b), the trial court must identify on the record the purpose for which it is admitted.FN93 Even if otherwise admissible for a valid purpose, Rule 404(b) evidence still must be relevant to a material issue and its probative value must outweigh its prejudicial effect.FN94 Evidence is relevant if it makes the existence of a consequential fact more or less probable.FN95 The trial court must also find by a preponderance of the evidence that the claimed misconduct occurred.FN96 The decision to admit evidence of other crimes or misconduct lies within the sound discretion of the trial court FN97 and will not be disturbed on appeal absent an abuse of discretion.FN98 There is an abuse of discretion when the trial court's decision is manifestly unreasonable or based upon untenable grounds or reasons.FN99

FN93. Pirtle, 127 Wash.2d at 649, 904 P.2d 245; Powell, 126 Wash.2d at 258, 893 P.2d 615; Lane, 125 Wash.2d at 832, 889 P.2d 929 (citing State v. Saltarelli, 98 Wash.2d 358, 362, 655 P.2d 697 (1982)).

FN94. Lane, 125 Wash.2d at 831, 889 P.2d 929; State v. Smith, 106 Wash.2d 772, 776, 725 P.2d 951 (1986); Saltarelli, 98 Wash.2d at 361-62, 655 P.2d 697; see also Pirtle, 127 Wash.2d at 649, 904 P.2d 245.

FN95. Saltarelli, 98 Wash.2d at 361-62, 655 P.2d 697; Powell, 126 Wash.2d at 259, 893 P.2d 615.

FN96. Pirtle, 127 Wash.2d at 649, 904 P.2d 245.

FN97. Laureano, 101 Wash.2d at 764, 682 P.2d 889.

FN98. Pirtle, 127 Wash.2d at 648, 904 P.2d 245; Lane, 125 Wash.2d at 831, 889 P.2d 929; Laureano, 101 Wash.2d at 764, 682 P.2d 889.

FN99. Powell, 126 Wash.2d at 258, 893 P.2d 615.

On December 6, 1993, Ms. Susan J. Schnell testified on direct examination concerning the circumstances leading to her encounter with Appellant. She related how she and Appellant first met and eventually made plans to spend Memorial Day weekend together in Palm Springs. She testified about Appellant's assault upon her in the hotel in Palm Springs:

Suddenly during the back rub he jerked my arm behind my back very fast in a brutal way. My arms were jerked. As he was jerking my arms back, he said, “Don't scream.” And at that point I did scream. And when I did scream, he slit my throat.FN100

FN100. Report of Proceedings, December 6, 1993 at 135.

Ms. Schnell also testified about Appellant's sexual assault upon her:

A. After the ba[n]dages, he had me sideways on the bed. And he was tying my legs with panty hose and turned different parts of the, would move the handcuffs from my hands to my feet and change the ... place, change the restraints.

Q. Did the defendant do anything more after that?

A. He did sexually assault me.

Q. Is this something that is difficult to talk about?

A. Yes. It is difficult to talk about.

Q. Would you tell the jury the nature of the sexual assault?

A. He shaved my hair off.

Q. He shaved the hair located, where?

A. My pubic hair. And had intercourse with me and asked me to perform oral sex on him.FN101

FN101. Id. at 141.

There was testimony from Ms. Schnell that, following the sexual assault, Appellant forced her to write several checks to him upon her account. She recalled that he rejected the first two checks because she had not matched to his satisfaction her signature on the checks with the signature on her driver's license.FN102 On cross examination, Ms. Schnell testified that, prior to Appellant's initial assault upon her, they engaged in some consensual sex. She stated they kissed and fondled each other, and that Appellant performed oral sex on her.FN103

FN102. Id. at 141-42.

FN103. Id. at 154-55.

There was no abuse of discretion in admitting the testimony of Ms. Susan J. Schnell. The trial court identified on the record the reasons for its admission under ER 404(b). The testimony was relevant to material issues in the case relating to premeditation, intent, and the four aggravating factors. It also qualified as res gestae evidence because it provided the jury with a more complete picture of events surrounding the crimes committed against Ms. Holly C. Washa. The trial court properly weighed the probative value of the testimony against its prejudicial effect and concluded its probative value substantially outweighed its prejudicial effect.

Admission of the testimony of Ms. Schnell was proper under ER 404(b) because it was probative of Appellant's motive, intent, preparation and plan to kidnap, rob, and murder Ms. Holly C. Washa. It was the State's theory at trial that Appellant used Ms. Washa to finance his trip to join Ms. Susan J. Schnell in California. He was in contact with Ms. Schnell while he held Ms. Washa captive. Evidence of his encounter with Ms. Schnell supported the State's theory. That evidence also supported the State's argument that Appellant intended and premeditated Ms. Washa's killing to conceal his crimes so he could go to California to meet Ms. Schnell. Evidence that Appellant slit the throats of two captive women in two days tended to rebut his contention that his killing of Ms. Washa was merely an impulsive “spur of the moment” act.

The testimony of Ms. Schnell was similarly probative on the issue of Appellant's rape of Ms. Washa. Appellant contended at trial that the sexual contact between him and Ms. Washa was consensual. Ms. Washa was dead and not available to relate the true facts. Evidence of a sexual assault against Ms. Schnell would tend to rebut Appellant's contention. Just two days after his assault upon Ms. Washa, Appellant sexually assaulted Ms. Schnell in a markedly similar manner. Both women were bound with the same pair of handcuffs, gagged, and had their pubic hair shaved by Appellant before he raped them. Because of these similarities, evidence of the attack on Ms. Schnell made it more probable that the sexual contact between Appellant and Ms. Washa was by forcible compulsion, and less probable that it was consensual.

Although Appellant was not actually convicted of sexually assaulting Ms. Schnell in California, her testimony concerning the entire incident was supported by a preponderance of the evidence. Appellant pleaded “guilty” in California to the crimes of attempted murder in the first degree, aggravated mayhem, torture, robbery in the first degree, and false imprisonment with Ms. Schnell as his victim.FN104 This satisfies the preponderance of the evidence standard with respect to those crimes. Ms. Schnell's testimony concerning her sexual encounter with Appellant satisfies this standard as well. Her description of the assault upon her was consistent with the sexual assault upon Ms. Holly C. Washa. Although she testified she and Appellant earlier engaged in some consensual sexual activity, that activity occurred prior to Appellant's assault upon her. After having her throat cut, her pubic hair shaved, and being bound and gagged by Appellant, it is not reasonable to believe she consented to any further sexual activity with him. Under these circumstances, her testimony concerning the sexual assault was sufficient to satisfy the preponderance of the evidence standard.

FN104. Report of Proceedings, December 15, 1993 at 45-46.

The testimony of Ms. Schnell was also admissible as res gestae evidence because the crimes against Ms. Washa and against her were linked in significant ways. Appellant's kidnapping, assault and robbery of Ms. Schnell was similar to the crimes he committed against Ms. Washa. Appellant sexually assaulted both women in a similar manner. He forced both women to write checks to him upon their respective bank accounts. He also used the same weapon to threaten both women into submission and to slit their throats. From this we can reasonably conclude that Appellant was engaged in an ongoing criminal enterprise of restraining, raping, robbing, and assaulting Ms. Washa and Ms. Schnell. Additionally, while Appellant was committing the crimes against Ms. Washa in Washington, he was also contacting Ms. Schnell to finalize his plans to meet her in California. He admitted to Palm Springs police officers that he kidnapped, assaulted, robbed and abused Ms. Washa because he needed money to get back to California, where he ultimately met Ms. Schnell and embarked on a similar pattern of criminal behavior. The events in California culminated a sequence of events which began in Washington with the crimes involving Ms. Holly C. Washa as victim. Under these circumstances, the jury was entitled to know about the events in Palm Springs with Ms. Schnell as victim in order to have a more complete picture of the circumstances surrounding Ms. Washa's death.

Appellant argues that Ms. Schnell's testimony did not qualify as res gestae evidence because he committed the crimes against her more than two days after he committed the crimes against Ms. Washa and “hundreds of miles away in another state.” This argument is without merit for two reasons. First, Rule 404(b) applies to evidence of other crimes or misconduct regardless whether they occurred before or after the conduct for which a defendant is currently charged.FN105 Second, while res gestae evidence is, as Appellant argues, restricted to proving the immediate context within which a charged crime took place,FN106 geographical distance and the passage of two days between these two similar and connected crimes do not defeat immediacy of context in this case.FN107

FN105. State v. Laureano, 101 Wash.2d 745, 764, 682 P.2d 889 (1984), overruled on other grounds, by State v. Brown, 111 Wash.2d 124, 761 P.2d 588 (1988), adhered to on rehearing, 113 Wash.2d 520, 782 P.2d 1013 (1989) (citing Tegland); 5 Karl B. Tegland, Wash. Prac. Evidence § 114, at 386 (3d ed. 1989).

FN106. See Lane, 125 Wash.2d at 831, 889 P.2d 929; see also John W. Strong, McCormick on Evidence, § 190, at 799 (4th ed.1992) ( res gestae evidence admissible “[t]o complete the story of the crime on trial by placing it in the context of nearby and nearly contemporaneous happenings.”) (footnote omitted).

FN107. See Lane, 125 Wash.2d at 833, 889 P.2d 929 (evidence of events occurring within a 2- or 3-day period of the charged crime admissible under res gestae exception to ER 404(b)).

Appellant claims that even if the evidence of his crimes against Ms. Susan J. Schnell was admissible for a valid purpose, it was too prejudicial to be admitted. He concludes that because it was admitted, he is now entitled to a new trial. This claim, too, is without merit. The trial court considered the prejudicial nature of Ms. Schnell's testimony and determined its probative value outweighed that prejudice. As a cautionary measure, the court gave the jury limiting instructions which explained that the testimony was not to be considered as character or propensity evidence.

Double Jeopardy Appellant maintains that permitting the jury to hear Ms. Schnell's testimony placed him twice in jeopardy for the same offense in violation of the state and federal constitutions.

There is no violation of double jeopardy in this case. A defendant is subjected to multiple prosecutions for the same offense in violation of double jeopardy when (1) the charged offenses have identical statutory elements or one is a lesser included offense of the other, and (2) conduct constituting an offense for which the defendant has already been prosecuted will be used to establish an essential element of an offense charged in a subsequent prosecution.FN108

FN108. Brett, 126 Wash.2d at 181, 892 P.2d 29; State v. Laviollette, 118 Wash.2d 670, 676, 826 P.2d 684 (1992) (citing Grady v. Corbin, 495 U.S. 508, 521, 110 S.Ct. 2084, 2093, 109 L.Ed.2d 548 (1990)).

Appellant does not minimally satisfy this double jeopardy test because he was not prosecuted in Washington for the same conduct for which he was prosecuted in California. In California he was charged with and pleaded “guilty” to attempted murder in the first degree, aggravated mayhem, torture, robbery in the first degree and false imprisonment, with Ms. Susan J. Schnell as his victim. In this case, he was prosecuted for the crimes he committed in the state of Washington with Ms. Holly C. Washa as his victim.FN109

FN109. Along with his double jeopardy claim, Appellant also argues his due process rights were violated when the trial court refused to “tell the jury [in the penalty phase] it could not consider the Susan Schnell facts as well as the uncharged sexual offense in deciding whether to impose death or life without parole.” Br. of Appellant at 129.

Testimony of Jan M. Gray and Brieanna C. West (5) Whether the trial court erred in admitting the testimony of Ms. Jan M. Gray and Ms. Brieanna C. West, who had noncriminal encounters with Appellant in California and Washington.

Appellant argues that the trial court abused its discretion and committed reversible error by admitting the testimony of Ms. Jan M. Gray and Ms. Brieanna C. West during the guilt phase of his trial. He claims the court did not identify the relevance of this evidence and also did not balance its probative value against its prejudicial effect as required by ER 404(b).

During the trial the defense moved to exclude Ms. West's and Ms. Gray's testimony as irrelevant. It also argued their testimony was prejudicial because it might lead the jury to conclude Appellant was stalking Ms. West as another potential victim.FN110 The court concluded the testimony of Ms. West and Ms. Gray did not constitute ER 404(b) character evidence because Appellant's contact with both women involved no crime or misconduct.FN111 It also stated that:

FN110. Clerk's Papers at 1089-90.

FN111. Report of Proceedings, November 16, 1993 at 10.

The State will not be allowed to argue that Ms. West or Ms. Gray were other potential victims that were simply waiting to happen ... but I think that all of this information goes to setting the ground work, setting the scene ... in front of the jury so that they can look at all the evidence before having to make the very difficult decisions in this case.FN112

FN112. Id. at 10-11.

Following the testimony of both Ms. West and Ms. Gray, the court orally instructed the jury there was no indication or allegation that Appellant intended to harm either of the two women. The court also instructed the jury that the testimony was presented “simply to place Mr. Brown's actions and activities in some sort of logical context. You are not to consider the testimony for any other reason.” FN113 The jury was similarly instructed at the conclusion of the guilt phase of the trial.FN114

FN113. Report of Proceedings, November 30, 1993 at 77.

FN114. Clerk's Papers at 1419. See Jury Instruction Number 7.

The admission of evidence lies within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion.FN115 The trial court did not abuse its discretion in allowing the testimony of Ms. Gray and Ms. West. The testimony was relevant because it established background information on Appellant's trip to Seattle where he committed the crimes in this case. He was not prejudiced by the testimony of Ms. Gray and Ms. West because his contact with both women involved no crime or misconduct. Thus, it did not come within the purview of ER 404(b).FN116 Any possibility the jury might have speculated that Appellant was stalking Ms. West or Ms. Gray was obviated by the trial court's limiting instructions.FN117

FN115. Laureano, 101 Wash.2d at 764, 682 P.2d 889.

FN116. Appellant's reliance on State v. Halstien, 122 Wash.2d 109, 857 P.2d 270 (1993) for the proposition that Rule 404(b) applies to this testimony is misplaced. In Halstien, the defendant was convicted of burglary with a finding of sexual motivation, and the trial court had ruled that evidence of the defendant's prior contacts with the victim did not constitute prior bad acts under ER 404(b). Halstien, 122 Wash.2d at 125-26, 857 P.2d 270. This court held that prior bad acts included “acts that are merely unpopular or disgraceful” and concluded that defendant's prior contacts with the victim fell within the scope of Rule 404(b). Id. at 126, 857 P.2d 270. However, the defendant in that case had made the victim feel uncomfortable in their prior contacts by “watching her,” asking unwelcome and inappropriate questions, and giving her “the creeps.” Id. at 112-113, 857 P.2d 270. In this case, neither Ms. Gray nor Ms. West expressed any similar concerns regarding their prior contacts with Appellant.

FN117. Appellant also argues that admission of the testimony of Ms. Gray and Ms. West “for eventual use in the penalty phase without the appropriate limiting instruction ... permitted the jury to consider Mr. Brown's propensity to ‘stalk’ other victims besides Holly Washa.” Brief of Appellant at 132. The testimony did not suggest Appellant was stalking either woman. And the court's limiting instruction on the matter, given twice to the jury, made that point sufficiently clear.

Miranda Rights (6) Whether Appellant was adequately advised of his Miranda rights before making statements to Palm Springs, California police detectives.

Appellant contends he was not adequately advised of his Miranda rights by the Palm Springs police before making his recorded statements and that those statements therefore should have been suppressed. He claims the warnings required under Miranda v. Arizona were inadequate because they did not explicitly inform him of his right to speak with an attorney before questioning.FN118 Although Appellant's trial counsel did not move to suppress his statements to the Palm Springs police at trial on the grounds of inadequate advisement of Miranda rights, Appellant may nevertheless raise this issue for the first time on appeal.FN119

FN118. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 10 A.L.R.3d 974 (1966).

FN119. See RAP 2.5(a)(3).

On May 27, 1991, Appellant was questioned for the first time by Palm Springs police detectives. One of the detectives informed Appellant of his rights before questioning began:

Detective: Basically, you have the right to remain silent. Anything you say can and may be used against you in court. You have the right to an attorney and have him present while you're being questioned, and if you can't afford one, one will be appointed for you by the court.

Appellant: All right.

Detective: Okay, having those rights, all of those rights....

Appellant: Okay.

Detective: Are you willing to talk?

Appellant: I'm willing to talk.

Detective: Are you willing to talk with us Cal?

Appellant: Okay.

(emphasis added).FN120

FN120. Ex. 89, Tape 1, side 1.

Later that day, the Palm Springs detectives conducted another interview with Appellant, at the beginning of which he was again advised of his rights:

Detective: I want to make sure that I've advised you of your rights on their case [King County's] too. You have the right to remain silent. Anything you say can and may be used against you in court.

...

Detective: You have the right to an attorney and to have him present when you're being questioned. If you cannot afford one, one will be appointed for you.

...

Detective: Do you understand those rights?

Appellant: I understand those rights.

(emphasis added).FN121

FN121. Ex. 89, Tape 2, side 1.

On May 28, 1991, the detectives spoke with Appellant at his request and he was again advised of his rights:

Detective: Okay. Cal, we're here because you asked us to come in and before we talk to you, I go over your rights every time.

Appellant: Okay.

...

Detective: You have the right to remain silent. Anything you say can and may be used against you in court. You have the right to an attorney and to have him present when you're being questioned. If you cannot afford an attorney, one will be appointed for you if you desire.

Appellant: Right.

Detective: Do you understand those rights?

Appellant: Right. (emphasis added).FN122

FN122. Ex. 89, Tape 3, side 1.

Under Miranda, a suspect in custody “must be warned prior to any questioning 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 the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.” FN123 The right to the presence of an attorney includes the right to consultation with counsel both before and during questioning.FN124 Violation of any of the Miranda requirements results in exclusion of any statements given by the suspect. FN125

FN123. Miranda, 384 U.S. at 479, 86 S.Ct. at 1630.

FN124. See Duckworth v. Eagan, 492 U.S. 195, 200-02, 109 S.Ct. 2875, 2879 106 L.Ed.2d 166 (1989); Cooper v. Dupnik, 963 F.2d 1220, 1239-40 (9th Cir.) cert. denied, 506 U.S. 953, 113 S.Ct. 407, 121 L.Ed.2d 332 (1992); State v. Creach, 77 Wash.2d 194, 461 P.2d 329 (1969).

FN125. Oregon v. Elstad, 470 U.S. 298, 306-08, 105 S.Ct. 1285, 1292, 84 L.Ed.2d 222 (1985).

However, there is no requirement that the warnings be given in the precise language stated in Miranda. No “talismanic incantation” is required. FN126 “Reviewing courts ... need not examine Miranda warnings as if construing a will or defining the terms of an easement.” FN127 The question is whether the warnings reasonably and effectively conveyed to a suspect his rights as required by Miranda.FN128

FN126. Duckworth, 492 U.S. at 202-04, 109 S.Ct. at 2880.

FN127. Id.

FN128. Id. at 202-04, 109 S.Ct. at 2880.

The case of People of the Territory of Guam v. Snaer is on point. There, the United States Court of Appeals for the Ninth Circuit held this warning was adequate under Miranda: “You have a right to consult with a lawyer and to have a lawyer present with you while you are being questioned.” FN129 The defendant in that case argued, as Appellant does here, that his Miranda warnings were inadequate because he had not been specifically advised he had a right to consult with an attorney before being questioned.FN130 The court rejected that claim and concluded the first part of the warning, when read with the latter part, adequately conveyed notice of the right to consult with counsel before questioning.FN131 In reaching that conclusion, the court noted that “[i]f a defendant has been told the substance of his constitutional rights, it is not fatal if irrelevant words or words with no independent substance are omitted.” FN132

FN129. People of the Territory of Guam v. Snaer, 758 F.2d 1341, 1342-43, (9th Cir.), cert. denied, 474 U.S. 828, 106 S.Ct. 90, 88 L.Ed.2d 74 (1985).

FN130. Id. at 1342.

FN131. Id. at 1343.

FN132. Id. at 1343 (quoting United States v. Noti, 731 F.2d 610, 614-15 (9th Cir.1984)).

As with the warnings at issue in Snaer, the Miranda warnings given Appellant by Palm Springs detectives adequately advised him of his constitutional rights. Prior to each of his three interviews with the detectives, Appellant was warned (1) that he had the right to an attorney and (2) that he had the right to have that attorney present during questioning. When read with the latter portion of that statement, the first part adequately advised Appellant he had the right to consult with counsel before questioning. Although the actual words “before questioning” were not included in the first part of the statement, the second part which read “and to have him present when you're being questioned” made that point sufficiently clear.FN133

FN133. See State v. Koopman, 68 Wash.App. 514, 520, 844 P.2d 1024 (1992), rev. denied, 121 Wash.2d 1012, 852 P.2d 1091 (1993) (rejecting appellant's claim that her Miranda warnings were defective because she had not been explicitly told she had the right to have counsel present before and during questioning).

Recording of Appellant's Custodial Statements and RCW 9.73.090 (7) Whether Appellant's statements to Palm Springs, California police, which were recorded without his knowledge as permitted by California law, violated Washington's Privacy Act, RCW 9.73 et seq., and thus were inadmissible in Washington courts.

Appellant claims his recorded statements should have been suppressed because they violated either or both RCW 9.73.030 and .090(1)(b)(i) and because the Palm Springs, California police officers were agents of the King County Police Department.

Washington's Privacy Act, RCW 9.73 et seq. , is designed primarily to protect private persons from public dissemination of illegally obtained information.FN134 This Court has concluded that “ RCW 9.73.090 is specifically aimed at the specialized activity of police taking recorded statements from arrested persons, as distinguished from the general public.” FN135 In State v. Rupe, this Court again confirmed that “ RCW 9.73.090, unlike RCW 9.73.030, applies specifically to individuals who have been arrested.” FN136 Appellant made his statements to Palm Springs police officers after his arrest. Thus RCW 9.73.090, and not RCW 9.73.030, initially would be applicable in this case.FN137 RCW 9.73.090(1) provides in pertinent part:

FN134. State v. Fjermestad, 114 Wash.2d 828, 834, 791 P.2d 897 (1990); State v. Wanrow, 88 Wash.2d 221, 233, 559 P.2d 548 (1977).

FN135. State v. Cunningham, 93 Wash.2d 823, 829, 613 P.2d 1139 (1980).

FN136. State v. Rupe, 101 Wash.2d 664, 683, 683 P.2d 571 (1984).

FN137. RCW 9.73.030(1)(b) provides:

“(1) Except as otherwise provided in this chapter, it shall be unlawful for ... the state of Washington, its agencies, and political subdivisions to intercept, or record any:

...

“(b) Private conversation, by any device electronic or otherwise designed to record or transmit such conversation ... without first obtaining the consent of all the persons engaged in the conversation.” (1) The provisions of RCW 9.73.030 through 9.73.080 shall not apply to police, fire, emergency medical service, emergency communication center, and poison center personnel in the following instances:

...

(b) Video and/or sound recordings may be made of arrested persons by police officers responsible for making arrests or holding persons in custody before their first appearance in court. Such video and/or sound recordings shall conform strictly to the following:

(i) The arrested person shall be informed that such recording is being made and the statement so informing him shall be included in the recording;

(ii) The recording shall commence with an indication of the time of the beginning thereof and terminate with an indication of the time thereof;

(iii) At the commencement of the recording the arrested person shall be fully informed of his constitutional rights, and such statements informing him shall be included in the recording;

(iv) The recordings shall only be used for valid police or court activities.

The Palm Springs police officers recorded Appellant's statements. This is standard practice for Palm Springs police in serious felony cases.FN138 But they did not inform Appellant of the recording. It is not disputed that they could record Appellant's statements without his consent under California law.FN139 But if this were done in Washington, it most probably would be in violation of RCW 9.73.090(1)(b). Our concern then becomes whether evidence lawfully obtained by police authorities in California should be suppressed in a criminal case in Washington State if similar action by Washington authorities would be in violation of Washington law.

FN138. Supplementation of Report of Proceeding, July 10, 1992, at 2.

FN139. See Cal.Penal Code §§ 632, 633 and 633.5 (West 1992 Supp.).

Appellant claims State v. Gwinner,FN140 State v. Mollica FN141 and State v. JohnsonFN142 support the argument that his recorded statements to California police should have been suppressed. Those cases addressed a question similar to this one, that is, whether evidence lawfully obtained by federal agents under federal law is admissible in Washington criminal proceedings when similar action by state authorities would violate the Washington Constitution. Those cases are at least pertinent to the issue in this case.

FN140. State v. Gwinner, 59 Wash.App. 119, 796 P.2d 728 (1990), review denied, 117 Wash.2d 1004, 815 P.2d 266 (1991).

FN141. State v. Mollica, 114 N.J. 329, 554 A.2d 1315 (1989).

FN142. State v. Johnson, 75 Wash.App. 692, 879 P.2d 984 (1994), review denied, 126 Wash.2d 1004, 891 P.2d 38 (1995).

In Gwinner, the Court of Appeals, Division One, adopted the principle that evidence independently obtained by federal officers in compliance with federal law, but in violation of state constitutional guarantees, is admissible in Washington state criminal proceedings.FN143 In that case a Washington detective telephoned a federal officer with information on the defendant, who was suspected of carrying drugs. Federal officers arrested the defendant as he was walking to his automobile. They also conducted a warrantless search of his vehicle, permissible under federal law but impermissible under Washington Constitution article I, § 7. The search yielded cocaine, the evidence defendant sought to suppress. In determining the evidence was admissible, the court in Gwinner looked to State v. Mollica,FN144 a New Jersey case which addressed the same question.

FN143. Gwinner, 59 Wash.App. at 120, 796 P.2d 728.

FN144. State v. Mollica, 114 N.J. 329, 554 A.2d 1315 (1989).

The court in Mollica traced the history of the “silver platter” doctrine, which developed when federal standards for searches and seizures were more protective than many state standards.FN145 Because of the different standards, federal courts adopted the principle that any evidence independently obtained by state officials could be given to federal officials on a “silver platter.” FN146 The court concluded that under federalism principles, state constitutions do not dictate federal action, FN147 and no legitimate state interests would be furthered by forbidding transfer of criminal evidence from federal to state authorities when the evidence was lawfully obtained by the former.FN148 Employing the “silver platter” doctrine, the court thus determined such evidence need not be suppressed if the federal officers acted without the assistance or cooperation of the state officers.FN149

FN145. Gwinner, 59 Wash.App. at 124, 796 P.2d 728 (citing Mollica, 554 A.2d at 1324-26).

FN146. Id. (citing Mollica, 554 A.2d at 1324). However, the Supreme Court rejected the silver platter doctrine in 1960. Elkins v. United States, 364 U.S. 206, 223, 80 S.Ct. 1437, 1447, 4 L.Ed.2d 1669 (1960).

FN147. Gwinner, 59 Wash.App. at 125, 796 P.2d 728 (citing Mollica, 554 A.2d at 1327).

FN148. Id. (citing Mollica, 554 A.2d at 1327-29).

FN149. Id. (citing Mollica, 554 A.2d at 1329-30).

The “key element of the silver platter doctrine requires that the officers of the federal jurisdiction not act as agents of the forum state jurisdiction nor under color of state law.” FN150 To determine whether the federal authorities are acting in such a manner, the courts consider, among other things:

FN150. Id. at 125, 796 P.2d 728.

[A]ntecedent mutual planning, joint operations, cooperative investigations, or mutual assistance between federal and state officers may sufficiently establish agency and serve to bring the conduct of the federal agents under the color of state law. On the other hand, mere contact, awareness of ongoing investigations or the exchange of information may not transmute the relationship into one of agency.FN151

FN151. Id. (quoting Mollica, 554 A.2d at 1329).

The court in Gwinner found the contact between the Washington detective and the federal agents to be a mere “transfer of information by telephone.” FN152 There was no evidence that the detective requested the federal officers to search the defendant's car or that the detective knew beforehand they would do it. The court held no agency relationship existed between the federal officers and the state. Thus the conduct of the federal officers was not under color of state law and the evidence was not suppressed.

FN152. Id.

In Johnson, the Court of Appeals, Division Two, reached a different conclusion than Gwinner on the same question because the federal authorities did not independently obtain the evidence at issue. In Johnson, state and federal officers worked together in investigating and arresting the defendants, a Washington couple. The court found numerous contacts between the state and federal authorities: (1) a Washington detective went with federal officers to investigate the defendants' property; (2) the detective helped federal officers verify information; (3) state authorities took pictures of the defendants' property at the request of federal authorities and gave the photographs to them; (4) both state and federal authorities executed the warrant to search defendants' property; (5) evidence seized from the defendants' property was turned over to the state; and (6) the husband was turned over to the state of Washington after his arrest. The court concluded the federal authorities acted with the “cooperation and assistance” of state authorities and this conduct triggered state constitutional protection. FN153

FN153. Johnson, 75 Wash.App. at 700, 879 P.2d 984 (quoting Gwinner, 59 Wash.App. at 125, 796 P.2d 728).

The reasoning of Gwinner, Mollica and Johnson leads to the preliminary conclusion that whether Appellant's recorded confessions should be suppressed depends upon the answer to the question whether the Palm Springs police were “agents” of this state, as defined under those cases, or whether the Palm Springs police merely acted with the “cooperation and assistance” of King County police, as interpreted in Johnson.

The Palm Springs police arrested Appellant and questioned him concerning events surrounding the injuries to Ms. Susan J. Schnell in California. During the initial interview, Appellant asked the officers to tell the King County police to come and talk with him. He articulately and unhesitatingly described in great detail the events surrounding Ms. Holly C. Washa's death and told them her body would be found in the trunk of a 1985 Oldsmobile parked in space 266 at the Budget Parking lot next to Shumsky's Restaurant near the Seattle-Tacoma Airport. After the interview, the officers contacted the King County Police and told them about the information Appellant had given. After locating the 1985 Oldsmobile as Appellant directed and finding Ms. Washa's body in the trunk, the King County police contacted the Palm Springs Police Department and asked them to get a statement from Appellant. The Palm Springs police told Appellant about the King County police request and asked if he was willing to give a statement. Appellant explained what he would say and then told them “Okay, you can let them know that I'm willing to cooperate up there....” FN154

FN154. Ex. 89, tape 2, side 1.

The State correctly points out that the facts here are more similar to Gwinner than to Johnson. In Gwinner, the Washington state detective merely contacted the federal officers with information about the defendant. The detective did not ask them to search the defendant's automobile and did not know beforehand they would conduct the search. In this case, the State simply telephoned Palm Springs police and asked them to get a statement from Appellant. The King County police did not tell the Palm Springs police what to ask or how to conduct the interview. Nor did they know the Palm Springs police would record Appellant's statements.

Appellant contends the Palm Springs police were “cooperating and assisting” King County police by questioning him about the Washington incidents. But the pertinent question is whether King County police cooperated with and helped Palm Springs police so extensively that the latter did not “independently” obtain Appellant's statements. When compared to Johnson, the facts here do not support a conclusion that King County police were “cooperating [with] and assisting” the Palm Springs police. The King County police merely telephoned Palm Springs police and asked them to question Appellant. Unlike in Johnson, in this case there was no collaborative effort between the two police departments in obtaining statements from Appellant.

Appellant's argument that his recorded statements should have been suppressed under Gwinner, Johnson and Mollica is thus not convincing. FN155 The Palm Springs police lawfully and independently recorded the statements under California law. Those statements were therefore admissible at trial, even though similar action in Washington might have been in violation of RCW 9.73.090(1)(b).

FN155. The trial court found an agency relationship was created when the State asked the Palm Springs police to question Appellant further. However, the court concluded that the King County police did not know the statements would be recorded; no evidence suggested King County police were trying to violate Washington law; and the Palm Springs police were following California law. Thus, suppressing the tapes would not further Washington's interest. Report of Proceedings, 4-B, at 53-55.

Appellant does not identify any state interest to be advanced by suppressing the recorded statements. No Washington state officer violated RCW 9.73 and no one's privacy interests protected by the statute were infringed. As suggested by the State, suppression of the statements would serve only to keep highly probative and lawfully obtained evidence from the jury.

The State asks this Court to adopt and affirm the reasoning of State v. MayesFN156 in resolving the question whether evidence lawfully obtained in another state should be admissible in Washington state, even if similar action by officers in this state would violate Washington law. In Mayes the Court of Appeals, Division Two, concluded the Privacy Act, RCW 9.73, did not apply to evidence obtained by police officers of another state within that state and according to its laws. Mayes acknowledged that “Washington has no criminal jurisdiction over actions having no effect in this state.” FN157 In State v. Williams this court noted the Mayes decision was based upon the doctrine that “a state legislature's enactment of a privacy statute creates a privacy expectation only for individuals who are within the borders of that state.” FN158 Other jurisdictions have reached the same conclusion.FN159 However, the court noted in Williams it had not yet addressed the validity of that doctrine.FN160

FN156. State v. Mayes, 20 Wash.App. 184, 579 P.2d 999, review denied, 91 Wash.2d 1001 (1978).

FN157. Id. at 193, 579 P.2d 999.

FN158. State v. Williams, 94 Wash.2d 531, 540 at n. 1, 617 P.2d 1012 24 A.L.R.4th 1191 (1980) (citing Mayes, 20 Wash.App. at 193, 579 P.2d 999).

FN159. Williams, 94 Wash.2d at 540, n. 1, 617 P.2d 1012 (citing Commonwealth v. Bennett, 245 Pa.Super. 457, 369 A.2d 493 (1976)).

FN160. Id.

This Court in In re Teddington declared the Gwinner decision “correctly” held that evidence “independently and lawfully obtained by federal officers acting pursuant to federal law may be transferred to state authorities for use in a Washington State criminal proceeding.” FN161 We agree with the conclusion reached in Mayes and rule that RCW 9.73 does not apply to Appellant's statements taken by Palm Springs police and lawfully recorded without his knowledge or consent.

FN161. In re Teddington, 116 Wash.2d 761, 772-73, 808 P.2d 156 (1991). See also State v. Bradley, 105 Wash.2d 898, 902-03, 719 P.2d 546 (1986) (“Neither state law nor the state constitution can control federal officers' conduct”).

Sufficiency of the Record for Appellate Review (8) Whether there is before this court a record of “sufficient completeness” for adequate appellate review of the issues presented in Appellant's appeal.

Appellant argues there is not a record of sufficient completeness for adequate review of his conviction and sentence of death and that therefore he is entitled to a new trial. He takes issue with the absence of a portion of the CrR 3.5 pretrial hearing verbatim report of proceedings involving the July 10, 1992 testimony of one of the Palm Springs detectives who interrogated him. He concludes that because this portion of the record (which addresses his Miranda warnings) is missing, appellate counsel is unable to effectively assign and argue error on appeal, denying him the right to effective assistance of counsel and due process. He also concludes that the missing transcript prevents this court from properly considering his arguments on appeal relating to his Miranda warnings, ER 404(b) evidence, and RCW 9.73. This claim is without merit.

Due Process requires that a record of “sufficient completeness” be provided for appellate review of the errors raised by a criminal defendant. FN162 RCW 10.95.100 provides that a death sentence must be reviewed by this court “on the record.” RAP 9.1(a) provides that the “record on review” may consist of (1) a report of proceedings, (2) clerks papers, (3) exhibits, and (4) a certified record of administrative adjudicative proceedings. RAP 9.1(b) provides that “the report of proceedings may take the form of a ‘verbatim report of proceedings' ..., a ‘narrative report of proceedings' ..., or an ‘agreed report of proceedings'....” And RAP 9.3 authorizes use of a narrative report of proceedings if the court reporter's notes are lost.

FN162. See Draper v. Washington, 372 U.S. 487, 496-498, 83 S.Ct. 774, 779-780, 9 L.Ed.2d 899, cert. denied 374 U.S. 850, 83 S.Ct. 1914, 10 L.Ed.2d 1070 and 374 U.S. 852, 83 S.Ct. 1919, 10 L.Ed.2d 1073 (1963). see also State v. Larson, 62 Wash.2d 64, 66-67, 381 P.2d 120 (1963). (“Under the rule of the Draper case, we must have a ‘record of sufficient completeness' for a review of the errors raised by the defendant in a criminal case.”)

There is no verbatim report of proceedings for the portion of the CrR 3.5 pretrial hearing held on July 10, 1992 because the court reporter was unable to find the notes for that day. As a result, this court directed the trial court to “settle all issues regarding the completion of the record for review” in this case. The trial court accordingly prepared from its notes taken at the July 10, 1992 hearing a Supplementation of Report of Proceeding. This provided a record of sufficient completeness for adequate review of the issues raised by Appellant.

The trial court's Supplementation of Report of Proceedings, based upon contemporaneous notes taken by the court on July 10, 1992, constitutes a narrative report of proceedings for that portion of the hearing sufficient to make the record complete. Appellant's assertion that the trial court's narrative report is “conclusory at best” on the issue of Miranda warnings is rebutted by the fact that, along with the trial court's narrative report, the record on review also contains the tape recordings of Appellant's statements to the Palm Springs Police which included Miranda warnings, FN163 as well as the trial court's oral ruling on the issues of Miranda warnings and RCW 9.73.FN164 Additionally, there are verbatim reports of all other proceedings, including the testimony of Ms. Schnell, Ms. West and Ms. Gray. We reject Appellant's claim that the record is not sufficiently complete for review of the issues in this case.

FN163. See Ex. 89. The extensive verbatim record of proceedings consists of more than 50 volumes. The Clerk's Papers number more than 1700. The trial court admitted 93 exhibits.

FN164. Report of Proceedings, September 15, 1993 at 2-12.

Death Qualification of jurors (9) Whether the trial court erred in allowing prospective jurors to be “death qualified” during voir dire examination.

The Sixth Amendment to the United States Constitution and Washington Const. Art. I, § 22 both warrant a defendant “the right to ... an impartial jury.” To ensure an impartial jury in capital cases, prospective jurors opposing the death penalty can be challenged for cause and excluded if their “views would ‘prevent or substantially impair the performance of [their] duties as ... juror [s],’ ” according to their instructions and their oath.FN165 This process is termed “death qualification.” FN166 In this case, the State “death qualified” the jury during voir dire. The Supreme Court has consistently held that the United States Constitution does not prohibit the states from death qualifying juries in capital cases.FN167 However, Appellant claims death qualifying a jury violates the Washington Constitution, Article I, §§ 21 and 22 because it produces a jury more prone to convict.FN168

FN165. Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581 (1980)); State v. Brett, 126 Wash.2d 136, 157, 892 P.2d 29 (1995) (quoting State v. Hughes, 106 Wash.2d 176, 181, 721 P.2d 902 (1986), quoting Wainwright v. Witt, 469 U.S. at 424, 105 S.Ct. at 852, cert. denied, 516 U.S. 1121, 116 S.Ct. 931, 133 L.Ed.2d 858 (1996)).

FN166. See Hughes, 106 Wash.2d at 180, 721 P.2d 902.

FN167. Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986); Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841; Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581; Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

FN168. Brief of Appellant at 94-101, 105-12. Although Appellant also contends death qualification disproportionately excludes minorities and women from the jury panel, he does so in general terms, and does not claim the jury in this case was disproportionately exclusive of women or minorities. The record does not support that claim. And Appellant presents no evidence showing that death qualification in Washington results in the systematic exclusion of minorities and women from the jury panel.

Whether the Washington Constitution should be independently analyzed as granting more protection than the federal constitution is determined by examining six nonexclusive factors set forth in State v. Gunwall.FN169 Those factors are: (1) the textual language of the state constitutional provision at issue; (2) differences in the parallel texts of the federal and state constitutions; (3) state constitutional and common law history; (4) preexisting state law; (5) structural differences between the federal and state constitutions; and (6) matters of particular state or local concern.FN170 This Court will address a state constitutional claim only if the claimant sufficiently briefs the Gunwall factors.FN171 Appellant has satisfied that requirement.

FN169. State v. Gunwall, 106 Wash.2d 54, 720 P.2d 808, 76 A.L.R.4th 517, (1986). In State v. Hughes, 106 Wash.2d 176, 721 P.2d 902 this Court concluded that death qualifying a jury was permissible not only under the federal constitution, but under the state constitution as well. Some cases have relied upon Hughes to reach the same conclusion. See State v. Gentry, 125 Wash.2d 570, 634, 888 P.2d 1105, cert. denied, 516 U.S. 843, 116 S.Ct. 131, 133 L.Ed.2d 79 (1995); State v. Kron, 63 Wash.App. 688, 695, 821 P.2d 1248, review denied, 119 Wash.2d 1004, 832 P.2d 487 (1992); State v. Peerson, 62 Wash.App. 755, 779, 816 P.2d 43 (1991), review denied, 118 Wash.2d 1012, 824 P.2d 491 (1992). But Hughes did not analyze the six factors in State v. Gunwall to conclude that death qualification is allowed under the Washington Constitution. Thus, in determining whether death qualification violates the Washington Constitution, Hughes and the cases following do not control at this point. See State v. Irizarry, 111 Wash.2d 591, 595-97, 763 P.2d 432 (1988) (Utter, J., concurring).

FN170. Gunwall, 106 Wash.2d at 61-62, 720 P.2d 808.

FN171. State v. Wethered, 110 Wash.2d 466, 472-73, 755 P.2d 797 (1988); State v. Olivas, 122 Wash.2d 73, 82, 856 P.2d 1076 (1993). See also State v. Brett, 126 Wash.2d 136, 159, 892 P.2d 29 (1995) (declining to discuss the defendant's right to an impartial jury under Const. art. I, § 22 because the Gunwall factors were not analyzed) cert. denied, 516 U.S. 1121, 116 S.Ct. 931, 133 L.Ed.2d 858 (1996).

Gunwall Analysis

The first Gunwall factor requires this Court to examine the text of the state constitutional provisions at issue. Const. art. I, § 21 provides that “[t]he right of trial by jury shall remain inviolate, but the legislature may provide for a jury of any number less than twelve in courts not of record....” Const. art. I, § 22 (amend. X) provides that “[i]n criminal prosecutions the accused shall have the right to ... a speedy public trial by an impartial jury....” Const. art. I, § 21 emphasizes the importance of the right to trial by jury, by declaring the right “shall remain inviolate.” Nothing in the state constitutional provisions suggests that death qualifying a jury is prohibited.

The second Gunwall factor requires this Court to consider significant differences between the texts of parallel provisions of the federal and state constitutions. The Sixth Amendment and Const. art. I § 22 are similar in that both grant the “right to ... an impartial jury.” But Const. art. I, § 21, which declares “[t]he right of trial by jury shall remain inviolate ....” has no federal counterpart. This Court in Pasco v. MaceFN172 found that difference between the state and federal constitutions significant enough to hold that the right to a jury trial under the state constitution, unlike the federal constitution, extended to the case of any adult criminal offense, including petty offenses. But Pasco did not address death qualification and is of little relevance to this case.FN173

FN172. City of Pasco v. Mace, 98 Wash.2d 87, 653 P.2d 618 (1982).

FN173. See State v. Hobble, 126 Wash.2d 283, 298-90, 892 P.2d 85 (1995).

Under the third Gunwall factor this Court must look to common law and constitutional history. Appellant relies on Pasco v. Mace,FN174 State v. LaneFN175 and State v. StegallFN176 to argue that case law supports the proposition that the right to a jury trial under the state constitution is broader than under the federal constitution. Appellant's reliance on those cases in this context is misplaced. The Court in Pasco held the state constitutional right to a jury trial extended to all cases of adult criminal offenses, including petty offenses. In Lane the Court determined an accused can waive his right to trial by a jury of twelve “and submit his cause to eleven jurors,” as the defendants did in that case. FN177 Stegall recognizes the right to a 12-person jury and sets forth requirements for a valid waiver of that right.FN178 Neither of these cases addresses the constitutionality of death qualification under the state constitution.

FN174. Pasco v. Mace, 98 Wash.2d 87, 653 P.2d 618.

FN175. State v. Lane, 40 Wash.2d 734, 246 P.2d 474 (1952).

FN176. State v. Stegall, 124 Wash.2d 719, 723, 881 P.2d 979 (1994).

FN177. Lane, 40 Wash.2d at 737, 246 P.2d 474.

FN178. Stegall, 124 Wash.2d at 729, 881 P.2d 979.

Appellant further asserts that Pasco, Lane and Stegall evidence this state's intent to expand federal constitutional protections relating to jury questions. Appellant's assertion has little merit. In State v. Schaaf FN179 this Court applied the Gunwall analysis and held that the state constitution gives no greater right to a jury trial for juveniles than does the federal constitution. Additionally, the constitutional history shows there is no indication the framers intended the state constitutional right to a jury to be broader than the federal right and particularly in the context of death qualification.FN180

FN179. State v. Schaaf, 109 Wash.2d 1, 743 P.2d 240 (1987).

FN180. See The Journal of the Washington Constitutional Convention 510-11 (Beverly P. Rosenow ed., 1962).

Under the fourth Gunwall factor we look for guidance to preexisting law, or law existing prior to adoption of the Washington Constitution. FN181 At the time Const. art. I, §§ 21 and 22 were adopted, Code of 1881 § 1083, p. 202, provided:

FN181. Gunwall, 106 Wash.2d at 61-62, 720 P.2d 808.

No person whose opinions are such as to preclude him from finding any defendant guilty of an offense punishable with death, shall be compelled or allowed to serve as a juror on the trial of any indictment for such an offense. As that passage indicates, preexisting law supports the process of death qualification. And, as the State points out, no preexisting body of state law supports a broader interpretation of Const. art. I, § 21 and § 22 in this context.

The fifth Gunwall factor requires this Court to examine the structural differences between the federal constitution and the state constitution. That factor always favors independent state constitutional analysis “because the federal constitution is a grant of power from the states, while the state constitution represents a limitation of the State's power.” FN182

FN182. State v. Gocken, 127 Wash.2d 95, 105, 896 P.2d 1267 (1995) (citing State v. Young, 123 Wash.2d 173, 180, 867 P.2d 593 (1994)).

Under the sixth Gunwall factor this Court examines whether the matter at issue is of particular state interest or local concern. In Taylor v. Louisiana, the United States Supreme Court stated:

The States remain free to prescribe relevant qualifications for their jurors and to provide reasonable exemptions so long as it may be fairly said that the jury lists or panels are representative of the community.FN183

FN183. Taylor v. Louisiana, 419 U.S. 522, 538, 95 S.Ct. 692, 701, 42 L.Ed.2d 690 (1975).

The Supreme Court has also emphasized there is not “any one right way for a State to set up its capital sentencing scheme.” FN184 Those statements suggest the death qualification process is a matter of purely local state concern. Even though that may be true, this court has shown no inclination to provide broader protection of defendants' constitutional rights in the context of death qualification.FN185

FN184. Morgan v. Illinois, 504 U.S. 719, 725-26, 112 S.Ct. 2222, 2228, 119 L.Ed.2d 492 (1992) (quoting Spaziano v. Florida, 468 U.S. 447, 464, 104 S.Ct. 3154, 3164, 82 L.Ed.2d 340 (1984)).

FN185. E.g., Hughes, 106 Wash.2d 176, 181, 721 P.2d 902; Gentry, 125 Wash.2d 570, 634, 888 P.2d 1105.

Applying the Gunwall factors leads us to conclude there is no basis for Appellant's argument that Const. art. I, §§ 21 and 22 should be independently analyzed as affording broader protection in the context of death qualification than the Sixth Amendment. Washington's common law, statutory history and constitutional history do not support Appellant's claim that death qualifying a jury violates the Washington Constitution article I, §§ 21 and 22.FN186 Previous capital cases, including State v. Hughes FN187 and State v. Mak,FN188 in which a Gunwall analysis was not conducted, properly upheld death qualification as valid under the Washington Constitution.

FN186. Appellant urges this Court to adopt several dissenting opinions of cases from New Jersey and Utah, including State v. Ramseur, 106 N.J. 123, 524 A.2d 188, 250-57 (1987), cert. denied, 508 U.S. 947, 113 S.Ct. 2433, 124 L.Ed.2d 653 (1993) State v. Bey ( II), 112 N.J. 123, 548 A.2d 887, 900 (1988), State v. Marshall, 123 N.J. 1, 586 A.2d 85, 129-34 (1991) and State v. Young, 853 P.2d 327, 342-43 (Utah 1993), from which Appellant cites extensively to support his claim that death qualification violates the Washington constitution. The Gunwall analysis contradicts his claim. Although informative, those dissenting opinions do not affect our independent state constitutional analysis.

FN187. State v. Hughes, 106 Wash.2d 176, 721 P.2d 902.

FN188. State v. Mak, 105 Wash.2d 692, 707, 718 P.2d 407, cert. denied, 479 U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 599 (1986), sentence vacated on writ of habeas corpus sub nom. Kwan Fai Mak v. Blodgett, 754 F.Supp. 1490 (W.D.Wash.1991), aff'd, 970 F.2d 614 (9th Cir.1992), cert. denied, 507 U.S. 951, 113 S.Ct. 1363, 122 L.Ed.2d 742 (1993).

Appellant argues death qualification produces a conviction-prone jury in violation of his right to an impartial jury. But that argument overlooks the fact that the State also has a right to an impartial jury. FN189 This Court acknowledged in Hughes that the voir dire process is aimed at excluding persons who cannot be fair to both sides of the case:

FN189. Hughes, 106 Wash.2d at 185, 721 P.2d 902 (citing Hayes v. Missouri, 120 U.S. 68, 70-71, 7 S.Ct. 350, 351-52, 30 L.Ed. 578 (1887)).

The guarantee of impartiality cannot mean that the state has a right to present its case to the jury most likely to return a verdict of guilt, nor can it mean that the accused has a right to present his case to the jury most likely to acquit. But the converse is also true. The guarantee cannot mean that the state must present its case to the jury least likely to convict or impose the death penalty, nor that the defense must present its case to the jury least likely to find him innocent or vote for life imprisonment.

...

The logical converse of the proposition that death-qualified jurors are conviction prone is that non-death-qualified jurors are acquittal prone, not that they are neutral.FN190

FN190. Id. at 185-86, 721 P.2d 902 (quoting Smith v. Balkcom, 660 F.2d 573, 579 (5th Cir.1981), modified on other grounds, 671 F.2d 858 (5th Cir.), cert. denied, 459 U.S. 882, 103 S.Ct. 181, 74 L.Ed.2d 148 (1982)).

In Hughes this Court declined “to define ‘impartial’ as ‘a middle ground that involves a jury with persons who are in effect defendant prone.’ ” FN191 Impartiality of jury members is presumed when they are selected from a fair cross-section of the community and they can properly follow their oath to apply the law to the facts of the case “regardless of the mix of individual view points actually represented” by the jurors.FN192

FN191. Id. at 186, 721 P.2d 902 (quoting Smith, 660 F.2d at 579).

FN192. Id. at 186, 721 P.2d 902 (quoting Lockhart v. McCree, 476 U.S. at 184, 106 S.Ct. at 1770).

Appellant also refers to studies reviewed in the United States Court of Appeals for the Eighth Circuit in Grigsby v. MabryFN193 to support his claim that death qualified juries are more prone to convict. But in Hughes this Court considered and rejected a similar claim by defendant which relied on the studies in Grigsby.FN194

FN193. Grigsby v. Mabry, 758 F.2d 226 (8th Cir.1985), rev'd sub nom. Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986).

FN194. Hughes, 106 Wash.2d at 182-84, 721 P.2d 902. Hughes also rejects Appellant's suggestion that separate juries should be required for the guilt and penalty phase. Id. at 186-88, 721 P.2d 902.

Statutory Basis Appellant asserts death qualification is unconstitutional because it has no statutory basis after former RCW 10.49.050 FN195 was repealed in 1981. He relies chiefly upon Witherspoon v. IllinoisFN196 to support his assertion. He also contends no court rules authorize the death qualification process.

FN195. Former RCW 10.49.050 provided:

“No person whose opinions are such as to preclude him from finding any defendant guilty of an offense punishable with death shall be compelled or allowed to serve as a juror on the trial of any indictment or information for such an offense.” FN196. Witherspoon, v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

The State argues RCW 4.44.170(2) and CrR 6.4(c) provide sufficient basis for death qualification. RCW 4.44.170(2) provides for challenging a juror for cause for actual bias:

For the existence of a state of mind on the part of the juror in reference to the action, or to either party, which satisfies the court that the challenged person cannot try the issue impartially and without prejudice to the substantial rights of the party challenging, and which is known in this code as actual bias.

Although the statute does not specifically refer to death qualification, it does support that process. CrR 6.4(c)(2) provides that “RCW 4.44.150 through RCW 4.44.200 shall govern challenges for cause.” Those provisions include RCW 4.44.170(2). In addition, our cases have consistently upheld the process of death qualification even without a statute which specifically refers to it.FN197

FN197. E.g., Gentry, 125 Wash.2d at 634, 888 P.2d 1105; Mak, 105 Wash.2d at 707, 718 P.2d 407; Hughes, 106 Wash.2d at 180-88, 721 P.2d 902.

Appellant's reliance upon Witherspoon is misplaced. Although the Supreme Court in that case evaluated an Illinois statute requiring death qualification, the case does not stand for the proposition that a specific statute is required to permit death qualification by the State. As Appellant acknowledges, the Supreme Court has stated there is not “any one right way for a State to set up its capital sentencing scheme.” FN198 The State points to the more recent Supreme Court decision of Wainwright v. WittFN199 in which the Court reviewed a trial court decision granting a challenge for cause in a capital case. The Court did not examine a death qualification statute, but found the trial court properly excused a juror for cause because of her views on the death penalty.FN200

FN198. Spaziano v. Florida, 468 U.S. at 464, 104 S.Ct. at 3164.

FN199. Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985).

FN200. Witt, 469 U.S. at 430, 105 S.Ct. at 855.

RCW 4.44.170(2), CrR 6.4(c)(2) and our case law provide sufficient authority for death qualifying a jury. We reject Petitioner's argument that because there is no statutory authority for it, death qualification of jurors is unconstitutional.

Trial Court Exclusion of Jurors Challenged For Cause (10) Whether certain prospective jurors were properly excused for cause.

Appellant claims the trial court abused its discretion in excusing prospective jurors Ms. Lisa Denis, Ms. Kristin A. Henderson and Richard Deal upon challenges for cause by the State.

A trial court's ruling on challenge of a prospective juror for cause is reviewed for manifest abuse of discretion.FN201 This Court gives deference to the trial court's finding that a prospective juror's views on the death penalty will prevent that person from trying the case fairly and impartially.FN202 This is because “[t]he trial judge is in the best position upon observation of the juror's demeanor to evaluate the responses and determine if the juror would be impartial.” FN203 In Wainwright v. Witt the Supreme Court quoted from Reynolds v. United States that “the manner of the juror while testifying is oftentimes more indicative of the real character of his opinion than his words. That is seen below, but cannot always be spread upon the record....” FN204

FN201. Brett, 126 Wash.2d at 158, 892 P.2d 29; Gentry, 125 Wash.2d at 634, 888 P.2d 1105 (citing State v. Rupe, 108 Wash.2d 734, 759, 743 P.2d 210 (1987), cert. denied, 486 U.S. 1061, 108 S.Ct. 2834, 100 L.Ed.2d 934 (1988); Mak, 105 Wash.2d at 707, 718 P.2d 407).

FN202. Gentry, 125 Wash.2d at 634, 888 P.2d 1105 (citing Wainwright, 469 U.S. at 425-26, 105 S.Ct. at 852-53; In re Lord, 123 Wash.2d 296, 309, 868 P.2d 835 (1994)).

FN203. Brett, 126 Wash.2d at 158, 892 P.2d 29 (citing Rupe, 108 Wash.2d at 749, 743 P.2d 210).

FN204. Witt, 469 U.S. at 428, n. 9, 105 S.Ct. at 854, n. 9 (quoting Reynolds v. United States, 98 U.S. 145, 156-57, 25 L.Ed. 244 (1878)).

The standard for ruling on challenges for cause in a death penalty case is whether the prospective juror's views would prevent or substantially impair the performance of that person's duties as a juror according to instructions and the oath taken by jurors.FN205

FN205. Brett, 126 Wash.2d at 157, 892 P.2d 29; Gentry, 125 Wash.2d at 635, 888 P.2d 1105; Wainwright, 469 U.S. at 424, 105 S.Ct. at 852.

Voir Dire of Ms. Lisa Denis When questioned on voir dire about whether she had ever made a life or death decision, Ms. Lisa Denis answered “No. I don't know ... I don't know if I could vote, I don't know if I could.” FN206 She also indicated the death penalty “would be a very difficult position” for her.FN207 Defense counsel asked her “[D]o you think that you could follow [the judge's] instructions to consider the possibility of a death penalty as a sentence?” She answered “Oh, yeah, I could follow the instructions. I think that-actually making that decision, no.” FN208 The court asked Ms. Denis if, given her knowledge, background and opinion, she could actually vote to impose the death penalty. Ms. Denis replied “I don't think I could. It would have to be so crystal clear. It would just have to be-[.]” FN209

FN206. Report of Proceedings, November 4, 1993, at 79.

FN207. Report of Proceedings, November 4, 1993, at 79.

FN208. Report of Proceedings, November 4, 1993, at 84.

FN209. Report of Proceedings, November 4, 1993, at 93.

The trial court did not abuse its discretion in excusing Ms. Denis for cause. The record supports the court's finding that her views about the death penalty would have substantially impaired her ability to follow the court's instructions.

Voir Dire of Ms. Kristin A. Henderson On voir dire, Ms. Kristin A. Henderson agreed she could follow the court's instructions and make a decision under the law. But she also voiced strong feelings against the death penalty. She said she felt the death penalty made “brutes of us all” and was “barbaric.” FN210 The court asked if she would seriously be willing to consider both the alternatives of life without possibility of parole and the death penalty, given her strong feelings. She replied “It would be difficult. I mean, I can see myself, I guess I could express it in body language perhaps. Pardon me. I would be sitting there like this.” FN211

FN210. Report of Proceedings, November 3, 1993, at 95.

FN211. Report of Proceedings, November 3, 1993, at 101. Ms. Henderson crossed her arms, held her hand up and sat back.

The trial court did not abuse its discretion in excusing Ms. Henderson for cause because her oral responses and body language showed she would be substantially impaired in performing her duties as a juror.

Voir Dire of Richard Deal

Appellant did not object at trial to the State's challenge of Richard Deal for cause. At any rate, Mr. Deal was properly excused. On voir dire he indicated he would impose the death penalty where the defendant “would reviolate if released,” which is not a correct statement of the law. He also misunderstood the State's burden of proof in a criminal case and understood it to be “beyond a shadow of a doubt,” although he was corrected later. The trial court did not abuse its discretion in excusing Mr. Deal for cause.

Jury Instructions on Premeditation and Intent (11) Whether the terms “premeditation” and “intent” were sufficiently explained in the trial court's instructions to the jury.

Appellant contends the trial court committed reversible error by not instructing the jury that premeditation and intent are separate elements of aggravated first degree murder. He assigns error to the court giving Instruction 11 defining premeditation:

Premeditation means thought over beforehand. When a person, after any deliberation, forms an intent to take human life, the killing may follow immediately after the formation of the settled purpose and it will still be premeditated. Premeditation must involve more than a moment in point of time. The law requires some time, however long or short, in which a design to kill is deliberately formed.FN212

FN212. Clerk's Papers at 1423.

Instruction 11 is Washington Pattern Instruction (Criminal) (WPIC) 26.01, which we have upheld in other capital cases.FN213 Appellant objected to Instruction 11 at trial and argues the trial court should instead have given his proposed Instruction 7 which read:

FN213. State v. Rice, 110 Wash.2d 577, 603, 757 P.2d 889 (1988), cert. denied, 491 U.S. 910, 109 S.Ct. 3200, 105 L.Ed.2d 707 (1989); State v. Benn, 120 Wash.2d 631, 657-58, 845 P.2d 289, cert. denied, 510 U.S. 944, 114 S.Ct. 382, 126 L.Ed.2d 331 (1993).

Intent and premeditation are not synonymous. Premeditation cannot simply be inferred from the existence of a criminal intent.

Premeditation involves the mental process of thinking beforehand, deliberation, reflection, weighing or reasoning for a period of time, however short. Although no specific period of time is required, sufficient time must have elapsed to allow deliberate formation of the intent to act and reflection upon the act intended. Premeditation necessarily involves an appreciable length of time.FN214

FN214. Clerk's Papers at 1175.

Errors in instructions are reviewed de novo.FN215 Jury instructions are to be read as a whole and each instruction is read in the context of all others given.FN216 “[A] specific instruction need not be given when a more general instruction adequately explains the law and enables the parties to argue their theories of the case.” FN217 The court need not give a party's proposed instruction if it is repetitious or collateral to instructions already given.FN218

FN215. Brett, 126 Wash.2d at 171, 892 P.2d 29, (citation omitted).

FN216. Id.; Gentry, 125 Wash.2d at 613, 888 P.2d 1105, (citation omitted).

FN217. Rice, 110 Wash.2d at 603, 757 P.2d 889.

FN218. Benn, 120 Wash.2d at 655, 845 P.2d 289.

A review of the instructions given in this case satisfies us the trial court did not err. In addition to Instruction 11, the court defined “intent” in Instruction 26, WPIC 10.01, which reads: “A person acts with intent or intentionally when acting with the objective or purpose to accomplish a result which constitutes a crime.” FN219 Instruction 26 is almost identical to RCW 9A.08.010(1)(a).FN220 The court also gave Instruction 10:

FN219. Clerk's Papers at 1438.

FN220. RCW 9A.08.010(1)(a) states that “[a] person acts with intent or intentionally when he acts with the objective or purpose to accomplish a result which constitutes a crime.”

To convict the defendant of the crime of first-degree premeditated murder, each of the following elements of the crime must be proved beyond a reasonable doubt:

(1) That on or about the 24th day of May, 1991, the defendant caused the death of Holly Washa;

(2) That the defendant acted with intent to cause the death of Holly Washa;

(3) That the intent to cause the death was premeditated; and

(4) That the acts occurred in King County, Washington.

If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.

On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.

A reading of Instructions 10, 11 and 26 indicates the court instructed the jury that “premeditation” and “intent” were separate elements of aggravated first degree murder.FN221 The instructions adequately follow the law in defining premeditation and intent. The trial court thus was not required to give Appellant's proposed Instruction 7. The court did not commit reversible error in giving Instruction 11 and refusing to give Appellant's proposed Instruction 7.

FN221. RCW 9A.32.030(1)(a) provides:

“Murder in the first degree. (1) A person is guilty of murder in the first degree when:

“(a) With a premeditated intent to cause the death of another person, he or she causes the death of such person or of a third person....” Aggravating Factors (12) Whether the trial court properly instructed the jury concerning the aggravating factors in the case.

Insufficiency of Evidence The State charged Appellant with aggravated first degree murder by committing first degree murder in the course of, in furtherance of, or in immediate flight from robbery in the first or second degree, rape in the first or second degree, and kidnapping in the first degree.FN222

FN222. Clerk's Papers at 1. Under RCW 9A.32.030(1)(a), a person is guilty of murder in the first degree when, with premeditated intent to cause the death of another person, the accused causes the death of that person or of a third person. RCW 10.95.020(9) provides that a person is guilty of aggravated first degree murder by committing first degree murder “in the course of, in the furtherance of, or in immediate flight from ... (a) Robbery in the first or second degree; (b) Rape in the first or second degree ... (d) Kidnapping in the first degree[.]”

Appellant contends there was not sufficient evidence to prove he killed Ms. Holly C. Washa during, in the course of, in furtherance of, or in immediate flight from the crimes of robbery, rape, or kidnapping. He thus claims he was denied due process when the trial court denied his motion to dismiss the aggravated murder charge, in which he claimed there was insufficient evidence of the aggravating circumstances of rape and robbery at the close of the State's case in the guilt phase.

In challenges to the sufficiency of evidence to prove an aggravating factor in aggravated murder, this Court must view the evidence most favorably towards the nonmoving party to determine whether any rational trier of fact could have found the presence of the aggravating factor beyond a reasonable doubt.FN223

FN223. Brett, 126 Wash.2d at 166, 892 P.2d 29.

To establish that a killing occurred in the course of, in furtherance of, or in immediate flight from a felony, there must be an “intimate connection” between the killing and the felony.FN224 The killing must be part of the “ res gestae ” of the felony, that is, in “close proximity in terms of time and distance.” FN225 A “causal connection” must clearly be established between the two.FN226 In other words, “more than a mere coincidence of time and place is necessary.” FN227

FN224. State v. Golladay, 78 Wash.2d 121, 132, 470 P.2d 191 (1970), overruled on other grounds, State v. Arndt, 87 Wash.2d 374, 378, 553 P.2d 1328 (1976).

FN225. State v. Leech, 114 Wash.2d 700, 706, 790 P.2d 160 (1990). See State v. Dudrey, 30 Wash.App. 447, 450, 635 P.2d 750 (1981), review denied, 96 Wash.2d 1026 (1982).

FN226. Golladay, 78 Wash.2d at 130, 470 P.2d 191.

FN227. 2 Wayne R. LaFave & Austin W. Scott, Jr. Substantive Criminal Law § 7.5, at 225 (discussing “causal connection” necessary between felony and murder in felony murder cases).

The trial court in this case relied primarily upon State v. Leech FN228 and State v. DudreyFN229 in denying Appellant's motion to dismiss the aggravated murder charge. This Court in Leech declined to apply a literal reading of “in furtherance of.” In that case, a fire fighter died while fighting a fire set by the defendant. The defendant, charged with felony murder, argued his act of arson ended once he set the fire and that any death caused by the fire was not within the res gestae or “in furtherance of” that crime. But we concluded that because the fire fighter died while the arson fire was still engaged, his death was sufficiently close in time and place to the arson to be within the res gestae of that felony.

FN228. Leech, 114 Wash.2d 700, 790 P.2d 160.

FN229. Dudrey, 30 Wash.App. 447, 635 P.2d 750.

The Court of Appeals, Division Three, in Dudrey, another felony murder case, concluded the killing was part of the res gestae of the felony where a burglary and a killing were closely related and occurred at about the same time and place. The defendant and a friend planned to burglarize the victim's home, where they knew she was sleeping. She awoke when the defendant threw a rock through the window. As she investigated, she was killed by either the defendant or his friend. The court found there was an “intimate and close connection” between the homicide and the burglary. FN230

FN230. Id. at 450, 635 P.2d 750.

But in State v. GolladayFN231 this Court found no intimate connection between a homicide and a larceny allegedly committed by the defendant. The defendant claimed he gave the victim and her male companion a ride in his automobile. He stated he then dropped them off. Later, while still driving, he accidentally hit an embankment. Witnesses at the accident scene saw him dispose of the victim's purse and shoes. The victim was later found dead. We determined the larceny was separate, distinct, and independent from the homicide. We concluded there was no “legal relation” between the killing and the larceny, pointing to the fact the larceny occurred after the killing FN232 and that the killing was not within the res gestae of the larceny. FN233

FN231. Id.

FN232. Golladay, 78 Wash.2d at 131, 470 P.2d 191.

FN233. Id.

Neither Leech, Dudrey nor Golladay completely addresses the specific issue raised by Appellant. He argues the killing of Ms. Washa was not in furtherance of either the rape or robbery because the killing occurred “hours” after those crimes were committed or completed, and thus the killing would not be within the res gestae of those crimes, or the killing was not committed to “further” those crimes. In Leech, Dudrey and Golladay, the killings and related felonies occurred within close proximity of time and place. In the circumstances presented by this case, the felonies occurred sometime within a two-day period, presumably “hours” before the actual killing.

Although Appellant claims his killing of Ms. Washa did not “further” the rape, robbery or kidnapping, following Leech we will not apply too literal an interpretation of “in furtherance of,” but will look instead to whether the killing was part of the res gestae of the felony. We have also recognized the need for a “causal” or “intimate” connection between a killing and a related felony to establish the killing was committed in the course of, in furtherance of, or in immediate flight from the felony.

The record in this case supports our conclusion that Appellant's killing of Ms. Holly C. Washa was within the res gestae or had a “causal connection” to the rape, robbery and kidnapping. The crimes are linked by Appellant's motive to obtain money to pay for his California trip. He made plans to meet Ms. Susan J. Schnell in Palm Springs, California and admitted to California police that he kidnapped Ms. Washa because he needed money to go there. He held Ms. Washa captive after robbing her. He told the Palm Springs police he had thought about robbing someone and letting that person go but “it would be just the same as waltzing into a bank and have my picture taken.” He held Ms. Washa captive for two days and raped and tortured her during that time. He admitted killing her because he did not want to leave a witness alive. Immediately after killing Ms. Washa, Appellant went to California. The killing and other felonies are intimately connected. From the beginning of Appellant's criminal acts against Ms. Washa, he was not separated from her until he killed her and left for California.

Viewing the record in the light most favorable to the State leads us to conclude there was sufficient evidence from which any rational trier of fact could have found beyond a reasonable doubt that the murder in this case was committed in furtherance of, in the course of, or in immediate flight from rape, robbery and kidnapping.FN234 The trial court did not err in denying Appellant's motion to dismiss his aggravated murder charge. Appellant was not denied due process.

FN234. Appellant conceded at trial the kidnapping was a continuing course of conduct and the killing was committed “in immediate flight from” the kidnapping. The record shows he kept Ms. Washa captive until her death. Thus, the kidnapping did not terminate until Appellant killed her and immediately left for California. The killing was committed “in the course of” and “in immediate flight from” the kidnapping.

Jury Instructions Appellant asserts the trial court committed reversible error and denied him due process by not instructing the jury on “in the course of,” “in furtherance of,” and “in immediate flight” as elements of the aggravating factors, as he proposed at trial. Appellant also complains the trial court erred in not giving that proposed instruction when, on December 9, 1993, the jury during deliberations asked in writing “Do we have a (legal) definition of in Furterance off [sic] and or Imidiate [sic] flight.” FN235 The court refused the defense request for the proposed instruction and told the jury, after affording all counsel an opportunity to consider it, “You have all of your instructions in this area. No further instructions will be given.” FN236

FN235. Clerk's Papers at 1410.

FN236. Id.

Considering the jury's request, Appellant complains the phrases “in the course of,” “in furtherance of,” “in flight from,” and “immediate flight” are technical terms in the context of this case and the court should have instructed the jury concerning them. A term is “technical” when it has a meaning that differs from common usage.FN237 The phrases here are not defined by statute. No appellate court has defined them and no pattern jury instructions address them. We conclude the phrases are expressions of common understanding to be given meaning from their common usage.

FN237. See State v. Scott, 110 Wash.2d 682, 694, 757 P.2d 492 (1988) (Utter, J., dissenting).

Trial courts must define technical words and expressions used in jury instructions, but need not define words and expressions that are of ordinary understanding or self-explanatory.FN238 For example, upon request, the trial court must give instructions on the statutory meaning of “intent.” FN239 But jury instructions need not define terms such as “common scheme or plan,” FN240 “single act,” FN241 “leniency,” FN242 or “mitigating circumstances.” FN243

FN238. State v. Allen, 101 Wash.2d 355, 358, 678 P.2d 798 (1984); Scott, 110 Wash.2d at 689, 757 P.2d 492.

FN239. Allen, 101 Wash.2d at 361-62, 678 P.2d 798.

FN240. Benn, 120 Wash.2d at 673-74, 845 P.2d 289; State v. Jeffries, 105 Wash.2d 398, 420, 717 P.2d 722, cert. denied, 479 U.S. 922, 107 S.Ct. 328, 93 L.Ed.2d 301 (1986).

FN241. Benn, 120 Wash.2d at 674, 845 P.2d 289.

FN242. Id.

FN243. State v. Bartholomew, 101 Wash.2d 631, 647, 683 P.2d 1079 (1984).

This Court has recognized that “[t]rial courts should exercise sound discretion to determine the appropriateness of acceding to requests that words of common understanding be specifically defined.” FN244 And when a jury has begun deliberating, the trial court also has discretion to determine whether to give further instructions upon request.FN245 The trial court in this case properly exercised its discretion by not giving Appellant's proposed instructions defining the phrases “in the course of,” “in furtherance of,” or “in immediate flight from” a felony.

FN244. Scott, 110 Wash.2d at 692, 757 P.2d 492 (citation omitted).

FN245. State v. Ng, 110 Wash.2d 32, 42, 750 P.2d 632 (1988).

Appellant also claims the court's refusal to define those phrases violated his due process rights because they were “essential elements of the aggravators.” And he argues jury instructions omitting essential elements of the crime prevent an accused from arguing its theory of defense and requires reversal. Even assuming those phrases are essential elements of the crimes charged, this Court has recognized that failure to give a definitional instruction is not failure to instruct on an essential element.FN246 The record in this case shows the trial court instructed the jury on all essential elements of the crimes charged.FN247 The defense was not prevented from arguing its theory of the case. Appellant's claim is without merit.

FN246. Scott, 110 Wash.2d at 690, 757 P.2d 492 (citation omitted).

FN247. See Clerk's Papers at 1411-1441 (“Court's Instructions to the Jury”).

The trial court did not commit reversible error or violate Appellant's due process rights by not giving instructions defining “in the course of,” “in furtherance of,” or “in immediate flight from” a felony.

Penalty Phase Instructions (13) Whether the trial court erred during the penalty phase in refusing to give the jury certain instructions proposed by the defense.

Appellant claims the trial court erred by not giving several of his proposed penalty phase instructions to the jury.FN248 To support his claim, he argues Washington is a “weighing state” and his proposed instructions were necessary to appropriately channel the jury's discretion during sentencing. And, he asserts, without his proposed instructions, the jury's decision was “an illusion of rational decisionmaking” in violation of the 8th and 9th Amendments to the United States Constitution and Washington Constitution, Article I, § 14.

FN248. See Appellant's proposed instructions P-9A, P-9B, P-11, P12, P-13, P-17, P-21, P-22 and P-23.

Weighing and Non-weighing Death Penalty Statutes The United States Supreme Court has classified state death penalty statutes as either “non-weighing” or “weighing.” FN249 The terms refer to the process in a death penalty case in which the sentencer considers or weighs a variety of factors in deciding whether to impose the death penalty.FN250

FN249. Compare Zant v. Stephens, 462 U.S. 862, 873-80, 103 S.Ct. 2733, 2740-44, 77 L.Ed.2d 235 (1983) (reviewing Georgia's “non-weighing” death penalty statute) with Stringer v. Black, 503 U.S. 222, 229-35, 112 S.Ct. 1130, 1135-39, 117 L.Ed.2d 367 (1992) (concluding Mississippi has a “weighing” death penalty statute).

FN250. In Williams v. Calderon, 52 F.3d 1465, 1478 n. 11-13 (9th Cir.1995), cert. denied, 516 U.S. 1124, 116 S.Ct. 937, 133 L.Ed.2d 863 (1996), the United States Court of Appeals for the Ninth Circuit noted states with weighing or non-weighing death penalty statutes, according to state and federal court decisions.

The following states were identified or treated as having “non-weighing” death penalty statutes: Georgia, Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983)(Ga.Code.Ann. § 17-10-30 (Michie 1994)); Illinois, People v. Todd, 154 Ill.2d 57, 180 Ill.Dec. 676, 684-85, 607 N.E.2d 1189, 1197-98 (1992) (Ill.Comp.Stat.Ann. § 5/9-1 (1992)), cert. denied, 510 U.S. 944, 114 S.Ct. 381, 126 L.Ed.2d 331 (1993); Kentucky, Wilson v. Commonwealth, 836 S.W.2d 872, 891 (Ky.1992) ( Ky.Rev.Stat.Ann. § 532.025 (Michie/Bobbs-Merrill 1994)), cert. denied, 507 U.S. 1034, 113 S.Ct. 1857, 123 L.Ed.2d 479 (1993); Louisiana, Ward v. Whitley, 21 F.3d 1355, 1365 (5th Cir.1994) ( La.Code.Crim.Proc.Ann. art. 905.3-.4 (West 1994)), cert. denied, 513 U.S. 1192, 115 S.Ct. 1257, 131 L.Ed.2d 137 (1995); Virginia, Briley v. Bass, 742 F.2d 155, 166 (4th Cir.) (Va.Code Ann. §§ 19.2-264.2, 19.2-264.4 (Michie 1994)), cert. denied, 469 U.S. 893, 105 S.Ct. 270, 83 L.Ed.2d 206 (1984); Delaware, Bailey v. Snyder, 855 F.Supp. 1392, 1408-10 (D.Del.1993) (Del.Code Ann. tit. 11, § 4209 (1994)) aff'd, 68 F.3d 736 (3rd Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 807, 133 L.Ed.2d 754 (1996) and Missouri, State v. LaRette, 648 S.W.2d 96, 102 (Mo.), (Mo.Ann.Stat. §§ 565.030, 565.032 (Vernon 1994)). cert. denied, 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983).

The following states were identified or treated as having “weighing” death penalty statutes: Alabama, Lawhorn v. State, 581 So.2d 1159, 1176 (Ala.Crim.App.1990) (Ala.Code §§ 13A-5-46 to -49 (1994)), aff'd, Ex parte Lawhorn, 581 So.2d 1179 (Ala.1991) cert. denied, 502 U.S. 970, 112 S.Ct. 445, 116 L.Ed.2d 463 (1991); Arizona, Richmond v. Lewis, 506 U.S. 40, 45-49, 113 S.Ct. 528, 534-35, 121 L.Ed.2d 411 (1992) ( Ariz.Rev.Stat.Ann. § 13-703 (1994)); Arkansas, Ford v. Lockhart, 861 F.Supp. 1447, 1453 (E.D.Ark.1994) (Ark.Code Ann. §§ 5-4-602 to -604 (1994)); Colorado, People v. White, 870 P.2d 424, 447-49 (Colo.) (Colo.Rev.Stat. § 16-11-103 (1994)), cert. denied, 513 U.S. 841, 115 S.Ct. 127, 130 L.Ed.2d 71 (1994); Florida, Parker v. Dugger, 498 U.S. 308, 318, 111 S.Ct. 731, 737-38, 112 L.Ed.2d 812 (1991) (Fla.Stat.Ann. § 921.141 (West 1995)); Indiana, Bellmore v. State, 602 N.E.2d 111, 129-30 (Ind.1992) (Ind.Code Ann. § 35-50-2-9 (West 1994)); Mississippi, Stringer v. Black, 503 U.S. 222, 229-30, 112 S.Ct. 1130, 1136, 117 L.Ed.2d 367 (1992) (Miss.Code Ann. § 99-19-101 (1993)); Nebraska, State v. Reeves, 239 Neb. 419, 476 N.W.2d 829, 836 (1991) ( Neb.Rev.Stat. §§ 29-2522 to 29-2523 (1993)), cert. denied, 506 U.S. 837, 113 S.Ct. 114, 121 L.Ed.2d 71 (1992); Nevada, Canape v. State, 109 Nev. 864, 859 P.2d 1023, 1031-35 (1993) (Nev.Rev.Stat. §§ 200.030, 200.033 (1993)), cert denied, 513 U.S. 862, 115 S.Ct. 176, 130 L.Ed.2d 112 (1994); New Mexico, State v. Henderson, 109 N.M. 655, 789 P.2d 603, 609-10 (1990) (N.M.Stat.Ann. §§ 31-20A-2, 31-20A-5 (1995)); North Carolina, Smith v. Dixon, 14 F.3d 956, 974 (4th Cir.) (en banc) (N.C.Gen.Stat. § 15A-2000 (1994)), cert. denied, 513 U.S. 841, 115 S.Ct. 129, 130 L.Ed.2d 72 (1994); Ohio, State v. Davis, 38 Ohio St.3d 361, 528 N.E.2d 925, 933 n. 11 (1988) (Ohio Rev.Code Ann. §§ 2929.03-.04 (Anderson 1993)), cert. denied, 488 U.S. 1034, 109 S.Ct. 849, 102 L.Ed.2d 980 (1989); Oklahoma, Stafford v. Saffle, 34 F.3d 1557, 1568 (10th Cir.1994) (Okla.Stat.Ann. §§ 701.10-.12 (West 1995)) cert. denied 514 U.S. 1099, 115 S.Ct. 1830, 131 L.Ed.2d 751 (1995); Pennsylvania, Commonwealth v. Holcomb, 508 Pa. 425, 498 A.2d 833, 849-51 & n. 16 (1985) (42 Pa.Cons.Stat.Ann. § 9711 (1994)), cert. denied, 475 U.S. 1150, 106 S.Ct. 1804, 90 L.Ed.2d 349 (1986); Tennessee, State v. Howell, 868 S.W.2d 238, 259-62 (Tenn.1993) (Tenn.Code Ann. § 39-13-204 (1994)), cert. denied, 510 U.S. 1215, 114 S.Ct. 1339, 127 L.Ed.2d 687 (1994); Utah, State v. Archuleta, 850 P.2d 1232, 1247-48 (Utah) (Utah Code Ann. §§ 76-3-207, 76-5-202 (1994), as interpreted by State v. Pierre, 572 P.2d 1338, 1347-48 (Utah 1977)), cert. denied, 510 U.S. 979, 114 S.Ct. 476, 126 L.Ed.2d 427 (1993); Wyoming, Zant v. Stephens, 462 U.S. at 874 n. 12, 103 S.Ct. at 2741 n. 12 (1983) ( Wyo.Stat. § 6-2-102 (1988)), as interpreted by Hopkinson v. State, 632 P.2d 79, 171 (Wyo.1981), cert. denied, 455 U.S. 922, 102 S.Ct. 1280, 71 L.Ed.2d 463 (1982).

In weighing states, such as Arizona or Mississippi, aggravating factors are weighed against mitigating evidence. The death penalty may be imposed only where specified aggravating factors outweigh all mitigating evidence.FN251 For example, under Arizona's statute, the sentencer is required to evaluate both mitigating and aggravating circumstances and impose the death penalty if it finds one or more aggravating circumstances specified in the statute and finds no sufficiently substantial mitigating circumstances in favor of leniency.FN252 The Supreme Court read it as requiring the sentencer to weigh both circumstances to determine the relative “substan[ce]” of the two.FN253

FN251. E.g., Parker v. Dugger, 498 U.S. 308, 318, 111 S.Ct. 731, 737-38, 112 L.Ed.2d 812 (1991).

FN252. Richmond v. Lewis, 506 U.S. 40, 47, 113 S.Ct. 528, 534-35, 121 L.Ed.2d 411 (1992).

FN253. Id.

In weighing states, it is constitutional error for the sentencer to give weight to an unconstitutionally vague aggravating factor, even if the other aggravating factors are valid.FN254 This conclusion arises from the assumption that the weighing process has been “skewed.” An invalid aggravating factor creates the possibility the sentencer may be biased in favor of the death penalty, based upon an illusory circumstance.FN255 And “a reviewing court may not assume it would have made no difference if the thumb had been removed from death's side of the scale.” FN256 Thus, an aggravating factor should give principled guidance to the sentencer to assure that determining whether a human life should be taken is not a product of “unbridled discretion.”

FN254. Id. at 46, 113 S.Ct. at 534.

FN255. Stringer, 503 U.S. at 236, 112 S.Ct. at 1139-40.

FN256. Stringer, 503 U.S. at 232, 112 S.Ct. at 1137.

In contrast, in a non-weighing state, like Georgia, the fact finder considers all the circumstances from both the guilt phase and penalty phase in deciding the penalty.FN257 These circumstances relate to both the crime and the defendant. In Georgia, for example, the jury must find at least one aggravating factor before imposing a death sentence, but the aggravating factors do not have a specific function in the jury's decision whether to impose the death penalty. The fact finder or sentencer is not required to weigh mitigating factors against aggravating factors.FN258

FN257. Id. at 230, 112 S.Ct. at 1136-37 (discussing Georgia death penalty statute).

FN258. Id. at 233, 112 S.Ct. at 1138 (discussing Louisiana death penalty statute).

Appellant urges us to determine Washington is a “weighing” state. But Washington's death penalty statute actually aligns this state with “non-weighing” states. At sentencing, the jury must answer only the statutory 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?” FN259 The statute does not require the jury to weigh specified aggravating factors against mitigating factors. And, as in other non-weighing states, a jury in Washington considers not only the crime proved, but all the evidence presented in both the guilt and penalty phases.FN260

FN259. RCW 10.95.060(4).

FN260. RCW 10.95.060; RCW 10.95.070. See State v. Jeffries, 105 Wash.2d 398, 717 P.2d 722, State v. Mak, 105 Wash.2d 692, 718 P.2d 407.

Appellant concedes this Court has not previously analyzed Washington's death penalty statute under the United States Supreme Court's weighing or non-weighing classification. By citing Washington cases which employ the words “weigh” or “weighs” or “outweighed,” he attempts to convince this Court to implicitly recognize RCW 10.95 et seq. , as a “weighing” statute. We are not convinced.

In Williams v. CalderonFN261 the United States Court of Appeals for the Ninth Circuit reasoned that:

FN261. Williams v. Calderon, 52 F.3d 1465, 1477-78 (9th Cir.1995) (footnotes omitted) cert. denied, 516 U.S. 1124, 116 S.Ct. 937, 133 L.Ed.2d 863 (1996).

[T]he Supreme Court's weighing/non-weighing distinction may involve both procedural and substantive components. Procedurally, is the sentencer restricted to a “weighing” of aggravation against mitigation? Substantively, is the sentencer prevented from considering evidence in aggravation other than discrete, statutorily-defined factors? Our review of federal and state court decisions reveals that where both constraints are present, the regimes involved are uniformly treated as weighing; where neither is present, the regimes are uniformly treated as non-weighing....

Applying the Williams approach to our death penalty statute supports our conclusion that RCW 10.95 et seq. is a “non-weighing” statute.FN262 Under the statute, the jury is not restricted to weighing aggravating factors against mitigating factors, but may consider all evidence presented during both the guilt and penalty phases. The jury may also consider non-statutory aggravating factors.FN263

FN262. In Campbell v. Blodgett, 978 F.2d 1502, 1512-13 (9th Cir.1992), the United States Court of Appeals for the Ninth Circuit determined that nothing in RCW 10.95 suggests the jury is required to engage in a balancing test, or impose the death penalty after finding the factors “in balance.”

FN263. E.g., State v. Gentry, 125 Wash.2d 570, 888 P.2d 1105 (victim impact evidence); State v. Bartholomew, 101 Wash.2d 631, 683 P.2d 1079 (1984) (adult convictions and juvenile court adjudications of guilt); Delo v. Lashley, 507 U.S. 272, 113 S.Ct. 1222, 122 L.Ed.2d 620 (1993) (unadjudicated criminal conduct).

Penalty Phase Instructions Appellant argues the trial court erred by not giving his proposed instructions P-9A, P-9B, 11, 12, 13, 17, 21, 22, and 23 during the penalty phase. He claims his proposed instructions were necessary to meet the constitutional requirement that the discretion of the jury be adequately focused by clear and objective standards.

An instruction must correctly state applicable law.FN264 The trial court does not err in refusing to give an instruction when, evaluated in the context of all the instructions, it is collateral to or repetitious of those already given.FN265 A jury is presumed to follow instructions given.FN266 Jury instructions are sufficient if they correctly state applicable law, are not misleading, and permit counsel to argue their theory of the case.FN267

FN264. Benn, 120 Wash.2d at 654, 845 P.2d 289.

FN265. Id. at 655, 845 P.2d 289.

FN266. Lord, 117 Wash.2d at 861, 822 P.2d 177.

FN267. Benn, 120 Wash.2d at 654-55, 845 P.2d 289.

Claimed errors at the penalty phase of a capital case are reviewed under heightened scrutiny. This requires an appellate court to review the record more carefully, but does not entail a different standard of review. FN268

FN268. Brett, 126 Wash.2d at 182, 892 P.2d 29 (citation omitted).

Appellant's proposed Instructions P-9A and P-9B sought to remind the jury of the limited purpose for which certain evidence had been admitted, including Ms. Brieanna C. West's testimony, Ms. Jan M. Gray's testimony, and the events in California. As Appellant acknowledged in those proposed instructions, the court had already given those instructions to the jury in the guilt phase.FN269 The trial court did not err in refusing to give Appellant's proposed instructions P-9A and 9-9B again in the penalty phase.

FN269. Clerk's Papers at 1419-20 (Instruction 7 and Instruction 8).

In Appellant's proposed Instruction P-11, he identified as the “crime” the jury was to have in mind the elements of premeditated first degree murder and the aggravating circumstances found by the jury in the guilt phase. It further instructed the jury “You must not consider any other feature of the crime that is not necessarily reflected in the elements and aggravating circumstances.” That is a misstatement of the law.

Under RCW 10.95.070, the jury may consider other factors at the beginning of the special sentencing process, including [2] whether the murder was committed while the defendant was under the influence of extreme mental disturbance; [3] whether the victim consented to the act of murder; [5] whether the defendant acted under duress or domination of another person; and [8] whether there is a likelihood the defendant will pose a danger to others in the future. It is not unconstitutional for the jury to consider the circumstances of the crime for which Appellant was convicted.FN270 Thus, the trial court did not err in refusing to give Appellant's proposed Instruction P-11.

FN270. See Tuilaepa v. California, 512 U.S. 967, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994).

Appellant's proposed Instruction P-12 states that the phrase “having in mind the crime of which the defendant has been found guilty” was “intended merely to provide a context for [the jury's] determination” of the death penalty. That misstates the law and is misleading. Under RCW 10.95.060(4), in answering the question on leniency, the jury is required to “hav[e] in mind the crime of which the defendant has been found guilty....” The jury may thus consider all the evidence submitted in the guilt phase proving the crime the defendant committed. It is not correct to state the question is merely a context for the jury's consideration.

Proposed Instruction P-12 also stated the jury must “not weigh the crime, any of its elements, any aspect of it or any circumstance surrounding it against the mitigating evidence” and that its “sole focus” should be whether there were insufficient mitigating circumstances to merit leniency. However, under non-weighing statutes, such as Washington's RCW 10.95, “A capital sentencer need not be instructed how to weigh any particular fact in the capital sentencing decision.” FN271 The jury was correctly instructed by the court to consider all the evidence from both the guilt and penalty phases, and not just whether there were insufficient mitigating circumstances.

FN271. Tuilaepa, at 977-79, 114 S.Ct. at 2638.

Appellant's proposed Instruction P-13 states “The number and nature of the aggravating factors found by you in the first phase of these proceedings should have no effect on your decision regarding the question posed by these instructions.” This instruction is misleading and confusing. The jury was required to “have in mind” the crimes committed by Appellant, which included the aggravating factors found during the guilt phase. The trial court also instructed the jury it was to consider the evidence submitted during both the guilt phase and penalty phase, which include the aggravating factors. The trial court did not err in refusing to give a proposed instruction which was misleading and contradicted instructions already given.

Four of Appellant's proposed instructions would advise the jury not to consider certain factors as “weighing” against any mitigating evidence presented. Those factors include (1) any impression they may have of the crime as heinous, depraved or cruel, or any related emotional response they have which weighs against any mitigating circumstance (P-17); (2) the future dangerousness of Appellant (P-21); FN272 (3) the expense of imprisoning Appellant for life (P-22) and (4) the deterrence of others (P-23). However, as the State correctly observes, RCW 10.95 is not a weighing statute. Appellant's proposed instructions incorrectly assumed Washington is a “weighing” state and that the jury would weigh aggravating factors against mitigating factors in its decision.

FN272. RCW 10.95.070(8) specifically provides that a jury may consider whether there is a likelihood the defendant will pose a danger to others in the future.

“[T]he Constitution does not require a State to adopt specific standards for instructing the jury in its consideration of aggravating and mitigating circumstances[.]” FN273 The Constitution does not require the jury to ignore other possible aggravating factors to determine who will actually be sentenced to death.FN274 “What is important at the selection stage is an individualized determination on the basis of the character of the individual and the circumstances of the crime.” FN275

FN273. Zant, 462 U.S. at 890, 103 S.Ct. at 2750.

FN274. Stringer, 503 U.S. at 231, 112 S.Ct. at 1137.

FN275. Id.

Washington's death penalty statute properly provides for “categorical narrowing” of those eligible for the death penalty in the guilt phase and for individualized determination and appellate review.FN276 Under RCW 10.95.020 the jurors consider statutory aggravating circumstances in the guilt phase to select the class of persons eligible for the death penalty. In this case the jurors found aggravating circumstances, among which were that Appellant killed Ms. Holly C. Washa in the course of, in furtherance of, or in immediate flight from the related felonies of rape, robbery and kidnapping.

FN276. Zant, 462 U.S. at 879, 103 S.Ct. at 2743-44.

The jury's determination was based upon evidence admitted at trial. The jury was instructed in the guilt phase not to permit “sympathy or prejudice” to influence their decision.FN277 During the penalty phase, the court instructed the jury that the evidence it was to consider consisted of “testimony of the witnesses and the exhibits admitted into evidence in phase one [the guilt phase] of this trial and during this special sentencing hearing.” FN278. In addition, during the penalty phase, Appellant presented mitigating evidence to the jury. The jury heard evidence of Appellant's traumatic birth and difficult childhood. There was also testimony that Appellant suffered from anti-social personality disorder, sexual sadism and manic syndrome. The jury was given full opportunity to consider those mitigating factors. Thus, Appellant's argument that the court's refusal to give his proposed instructions resulted in an unconstitutional “illusion of rational decisionmaking” is without merit.

FN277. Clerk's Papers at 1413 (Instruction 1).

FN278. Clerk's Papers at 1581 (Instruction 1).

RCW 10.95.130 requires this Court to determine upon review whether the death sentence was arbitrary, excessive, disproportionate, or brought about through passion or prejudice. In answering that inquiry in the negative, we conclude the trial court did not err in refusing to give Appellant's proposed sentencing phase instructions.

Criminal History

Appellant assigns error to the trial court's denial of his motion to exclude his criminal history during the penalty phase. However, our death penalty statute authorizes the jury to consider a defendant's prior criminal history in the penalty phase. RCW 10.95.070(1) states:

In deciding the question posed by RCW 10.95.060(4), the jury ... may consider any relevant factors, including but not limited to the following:

(1) Whether the defendant has or does not have a significant history, either as a juvenile or as an adult, of prior criminal activity[.]

During the penalty phase the State presented Appellant's criminal history limited to his record of convictions. This is constitutionally permissible. FN279 The trial court did not err in denying Appellant's motion to exclude his criminal history.

FN279. E.g., State v. Bartholomew, 101 Wash.2d at 640-41, 683 P.2d 1079.

Notice of Special Sentencing Proceeding (14) Whether Appellant was properly served with the Notice of Special Sentencing Proceeding required by RCW 10.95.040(2).

Appellant argues this Court should set aside his death sentence because there is no proof the State served him or his attorneys with its notice of intent to seek the death penalty. In support of his claim he relies upon RCW 10.95.040(3) and State v. Dearbone, 125 Wash.2d 173, 177, 883 P.2d 303 (1994).FN280

FN280. In Appellant's brief, the argument heading for this section states: “THE STATE FAILED TO SERVE ITS NOTICE OF INTENT TO SEEK THE DEATH PENALTY ON MR. BROWN OR HIS ATTORNEYS WITHIN 30 DAYS OF THE ARRAIGNMENT, REQUIRING THIS COURT TO STRIKE THE DEATH SENTENCE IN THIS CASE.” Brief of Appellant at 55. However, in the argument section itself, Appellant only claims “there is absolutely no proof” the State served him or his attorneys. Id. at 56.

RCW 10.95.040 imposes upon the State specific requirements for notifying a defendant it intends to seek the death penalty. When a person is charged with aggravated first degree murder, the State must file a “notice of a special sentencing proceeding” to determine whether the death penalty should be imposed when there is reason to believe there are insufficient mitigating circumstances to merit leniency.FN281 The State must file and serve the notice on the defendant or defendant's counsel within 30 days after arraignment unless the court extends or reopens the filing period upon showing of good cause. FN282 RCW 10.95.040(3) states that if the notice is not filed and served as provided under RCW 10.95.040, the State “may not request the death penalty.” FN283

FN281. RCW 10.95.040(1).

FN282. RCW 10.95.040(2).

FN283. RCW 10.95.040(3).

The record in this case shows the notice of special sentencing proceeding was properly filed on March 24, 1992 within 30 days after Appellant's arraignment on February 26, 1992.FN284 But Appellant claims “there is absolutely no proof that the State ever served [him] or his attorneys with this Notice.” FN285 He notes “[t]here may be a hearing at which the Notice was served, but there is no evidence of which hearing that is in the clerk's papers.” FN286 RCW 10.95.040 requires the State to serve a defendant with the notice of special sentencing proceeding, but does not require proof of service. Appellant does not claim he was not served with the notice, but only there is no proof he was served. His argument is without merit.

FN284. Clerk's Papers at 37.

FN285. Brief of Appellant at 56.

FN286. Brief of Appellant at 56, n. 8.

Dearbone cited by Appellant is distinguishable from this case. In that case, the State did not serve defense counsel with the notice of special sentencing proceeding until four days after expiration of the time for service under RCW 10.95.040(2). The defendant moved to preclude the State from requesting the death penalty because of violation of RCW 10.95.040(2). The State then moved to reopen the time for service and served defense counsel another copy of the notice. The trial court found good cause for reopening the time for service and granted the State's motion, allowing the State to seek the death penalty. On review, this Court determined the State did not show good cause and reversed the trial court. In its reasoning, this Court stated that “filing and service of notice is mandatory-no notice, no death penalty.” FN287 In this case, Appellant did not raise the issue of service in the trial court, does not claim the notice was untimely served under RCW 10.95.040(2), and only bases his claim before this court on the fact there is no proof he was served. Appellant does not argue he was not served with the notice. Dearbone does not apply.

FN287. Dearbone, 125 Wash.2d at 177, 883 P.2d 303.

A review of the record supports a reasonable conclusion Appellant was properly served with the notice of special sentencing proceeding. On March 25, 1992, a day after the notice was filed, Appellant and one of his attorneys appeared before the court and signed an order setting trial date. FN288 An omnibus hearing was also held on that date. The record does not show any objections concerning service of the notice. On June 5, 1992 Appellant filed a motion to set aside the notice of special sentencing proceeding to determine whether the death penalty should be imposed. FN289 In the motion, Appellant argued the notice should be set aside for violation of RCW 10.95.040(1) because the State had information showing mitigating circumstances sufficient to merit leniency. At that time he made no claim the State had not properly served him or his attorney with notice. His attorneys appeared numerous times before the trial court after March 24, 1992, but never raised the issue of service of the notice.

FN288. Clerk's Papers at 38, 47-49.

FN289. Clerk's Papers at 275.

Appellant's claim that his death sentence should be set aside for absence of proof of service of notice under RCW 10.95.040 is without merit.

Reciprocal Discovery (15) Whether Criminal Rule 4.7(CrR 4.7) mandates reciprocal pretrial discovery of evidence relevant to the penalty phase in a capital case.

On cross appeal, the State assigns error to the trial court's ruling denying its pretrial motion to compel disclosure of Appellant's penalty phase mitigation evidence. The State argues this court should hold that CrR 4.7 mandates reciprocal pretrial discovery of information pertinent to the penalty phase of a capital case.

On February 12, 1993, the State filed a pretrial motion to compel disclosure of any mitigation evidence in Appellant's possession which he intended to present in the penalty phase of the trial.FN290 In response the defense argued, among other things, that forced disclosure of this evidence before completion of the guilt phase of the trial might compromise one or more of Appellant's constitutional rights, such as the right against self incrimination.FN291 The trial court denied the State's motion by order dated February 25, 1993, concluding that reciprocal discovery of penalty phase evidence was not required before completion of the guilt phase of the trial.FN292 The court did, however, order the defense to disclose before trial the identities of any experts it was consulting and planned to call as witnesses at sentencing, but did not allow the State to contact those persons. FN293 The court observed that this disclosure would not “constitute waiver of any right to confidentiality or against self-incrimination....” FN294

FN290. Clerk's Papers at 652-64.

FN291. Id. at 665-80.

FN292. Id. at 686.

FN293. Id.; Report of Proceedings, February 25, 1993 at 26-34.

FN294. Clerk's Papers at 686.

In general, the scope of discovery is within the sound discretion of the trial court and its decisions will not be disturbed absent a manifest abuse of that discretion.FN295 CrR 4.7, a reciprocal discovery rule, guides the trial court in the exercise of its discretion over discovery.FN296 The rule applies to all “criminal proceedings.” FN297 The principle of “full and free” pretrial discovery underlies CrR 4.7 to provide adequate information for informed pleas and to “expedite trials, minimize surprise, afford opportunity for effective cross-examination, and meet the requirements of due process....” FN298

FN295. State v. Yates, 111 Wash.2d 793, 797, 765 P.2d 291 (1988) (citing State v. Mak, 105 Wash.2d 692, 718 P.2d 407).

FN296. Id.

FN297. See CrR 1.1.

FN298. Yates, 111 Wash.2d at 797, 765 P.2d 291 (quoting Criminal Rules Task Force, Washington Proposed Rules of Criminal Procedure 77 (West Pub'g Co. ed. 1971)).

The State does not claim the trial court abused its discretion in making its discovery ruling. It asks this court to hold that CrR 4.7 provides for reciprocal pretrial discovery of penalty phase evidence in capital trial subject only to the trial court's discretion over the scope of discovery. The State contends the general requirement of reciprocity in criminal discovery applies equally to the guilt and penalty phases of a capital case and, thus, that reciprocal pretrial discovery of penalty phase evidence is required. It cites in support of that contention the California Supreme Court decision of People v. Mitchell.FN299

FN299. People v. Mitchell, 5 Cal.4th 1229, 859 P.2d 102, 23 Cal.Rptr.2d 403 (1993).

In Mitchell, the court was asked to decide whether and to what extent California's general criminal discovery rule, requiring reciprocal pretrial discovery by the parties to a criminal action, was applicable to the penalty phase of a capital case. The rule had been enacted into law in 1990 by initiative and codified in Cal.Penal Code, § 1054 et seq. Section 1054.3 of the code requires criminal defendants and their attorneys to disclose to the prosecuting attorney the names and addresses of persons they intend to call “at trial,” any relevant statements or reports of those persons, and any real evidence intended to be offered into evidence. The prosecuting attorney has similar obligations under the statute.FN300

FN300. Id. at 1232, 23 Cal.Rptr.2d 403, 859 P.2d 102 (referencing § 1054.1).

The defendant in that case refused to provide the prosecution with any pretrial discovery pertinent to the penalty phase of his trial.FN301 He argued, as Appellant did here,FN302 that the discovery rule requiring reciprocity did not apply to the penalty phase of a capital case because the penalty phase was a sentencing hearing and not part of a criminal “trial” within the meaning of the rule.FN303 The court rejected that argument and held that the penalty phase of a capital trial “is merely a part of a single, unitary criminal proceeding” and embraced within the concept of a “trial” or “criminal trial.” FN304

FN301. Id.

FN302. Clerk's Papers at 669-70, n. 1.

FN303. Mitchell, 5 Cal.4th at 1233, 23 Cal.Rptr.2d 403, 859 P.2d 102.

FN304. Id.

The court in Mitchell found more persuasive the defendant's claim that premature disclosure of his penalty phase evidence might jeopardize his defense at the guilt phase of his trial and potentially violate his privilege against self-incrimination.FN305 However, the court reasoned that such concerns could be eliminated by deferring a ruling on the prosecution's penalty phase discovery in appropriate cases pending completion of the guilt phase of the trial.FN306 The court reasoned that trial courts possess broad discretion to order a general continuance of a prosecutor's discovery request upon a showing that the continuance is appropriate or necessary to protect a criminal defendant's constitutional rights.FN307 A continuance might be based upon such considerations as the probable duration of the guilt phase, the likelihood that a guilty verdict with special circumstances will be returned, and the potential adverse effect disclosure could have on the guilt phase defense.FN308 And where necessary, the court may permit such a showing to be made in camera.FN309

FN305. Id. at 1237, 23 Cal.Rptr.2d 403, 859 P.2d 102.

FN306. Id.

FN307. Id. at 1238, 23 Cal.Rptr.2d 403, 859 P.2d 102.

FN308. Id.

FN309. Id.

Mitchell suggests a similar resolution in this case. Like the California discovery rule in Mitchell, CrR 4.7 is a general criminal discovery rule applicable to all “criminal proceedings.” FN310 In the absence of an express statutory provision to the contrary, it applies to criminal proceedings involving the death penalty as well.FN311 The rule applies equally to the penalty phase of a capital case as it does to the guilt phase because the former is neither more nor less than the whole “single, unitary criminal proceeding.”FN312 Although Appellant argues that the penalty phase is a separate sentencing proceeding to which the discovery rules applicable to “criminal proceedings” do not apply, he has cited no authority for that conclusion.

FN310. See CrR 1.1.

FN311. RCW 10.95 et seq. governs criminal proceedings involving the death penalty in this state. RCW 10.95.060, which sets forth the procedure to be followed in the penalty phase of a capital case, does not address the subject of discovery. Nor is that subject addressed elsewhere in the statute. See generally RCW 10.95.

FN312. Mitchell, 5 Cal.4th at 1233, 23 Cal.Rptr.2d 403, 859 P.2d 102.

The State's position on the discovery issue is nothing more than actual practice and is merely a restatement of the law which is not in genuine dispute in this case.

Victim Impact Evidence (16) Whether the trial court erred in refusing to admit victim impact evidence at the penalty phase of the trial.

The State relies upon State v. GentryFN313 in asserting the trial court erred in refusing to admit the testimony of Ms. Holly C. Washa's father as victim impact evidence. Our decision in Gentry had not been announced at the time of trial in this case.FN314

FN313. Gentry, 125 Wash.2d 570, 888 P.2d 1105 (1995).

FN314. The State was aware the Gentry case was pending at the time. Report of Proceeding, December 15, 1993, at 108. In offering Mr. Washa's testimony the State explained: “While we wanted to push hard and ask this Court to allow this evidence in front of the jury, we understand that that would put this Court in a very difficult position, but we would like to preserve the issue and be able to cross-appeal it. So essentially what we're asking this Court to do is make a ruling at this time that we don't like so that we would be able to cross-appeal.” Id.

At the penalty phase, the State, in absence of the jury, made an offer of proof of testimony by John L. Washa concerning his daughter's interests and the impact of her murder upon her family. The trial court ruled the testimony was not admissible “under current law and current interpretation....” FN315 In Gentry, the trial court admitted a similar statement by the victim's father concerning his murdered daughter and the effect of the murder on her family. We agreed with that court's ruling:

FN315. Report of Proceedings, December 15, 1993, at 109.

We ...conclude that victim impact evidence is admissible in the sentencing phase of capital cases and that trial courts, which are experienced in balancing the probative against the prejudicial, should exercise their informed discretion in deciding the scope of permissible victim evidence in a given case. In the case before us, there was no error in the admission of the victim's father's statements about his young murdered daughter or about the profound effect of the murder upon her family ... victim impact evidence may properly include a description of the emotional trauma suffered by the victim's family.FN316

FN316. Id. at 632-33, 888 P.2d 1105.

If Gentry had been decided before the trial in this case, the trial court could have, in its discretion, admitted the testimony of John L. Washa as victim impact evidence at the penalty phase. But it would not have been error not to admit it. At any rate, the trial court did not commit error in denying victim impact evidence in this case.

SUMMARY AND CONCLUSIONS (1) There was sufficient evidence to justify the affirmative finding by the jury that there were not sufficient mitigating circumstances to merit leniency. The sentence of death was not excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. The sentence of death was not brought about by passion or prejudice. Nor is the defendant mentally retarded.

(2) The proportionality review mandated by RCW 10.95.130(b) is not void for vagueness under either the Eighth or Fourteenth Amendments to the United States Constitution, nor under article I, §§ 3 and 14 of the Washington Constitution.

(3) None of the statements made by the prosecuting attorneys during either the guilt or penalty phases of the trial constituted prosecutorial misconduct requiring a new trial.

(4) The trial court did not abuse its discretion in admitting the testimony of Ms. Susan J. Schnell. Her testimony did not violate Evidence Rule 404(b), nor did it constitute double jeopardy.

(5) The trial court did not abuse its discretion in admitting the testimony of Ms. Jan M. Gray or Ms. Brieanna C. West. Their testimony merely served to establish the context of the case and was not prejudicial to Appellant.

(6) Appellant was adequately advised of his Miranda rights before giving statements to the Palm Springs, California police.

(7) The trial court did not err in admitting Appellant's statements which were recorded by the Palm Springs police without his knowledge or consent. The officers lawfully recorded the statements under California law and were not acting as agents of the King County police at that time. Thus RCW 9.73, Washington's Privacy Act, does not require suppression of that evidence. Suppressing the evidence would not further legitimate state interests and would only suppress highly probative evidence lawfully obtained in California.

(8) There is a record of “sufficient completeness” for adequate appellate review of Appellant's case.

(9) “Death qualification” of jurors does not violate the Washington Constitution, article I, §§ 21 and 22.

(10) The trial court properly exercised its discretion in excusing for cause prospective jurors Ms. Lisa Denis, Ms. Kristin A. Henderson and Richard Deal during voir dire. Their views would have prevented or substantially impaired their ability to follow the court's instructions and abide by their oaths as jurors.

(11) RCW 10.95.040 requires the State to serve a defendant with notice of its intent to seek the death penalty within 30 days of arraignment. The record supports a reasonable conclusion that Appellant was served in fact with the notice. The statute does not require proof of service. Thus, Appellant's claim that his death sentence should be set aside merely because there is no proof of service is without merit.

(12) Viewing the record in the light most favorable to the State, any rational trier of fact could have determined, beyond a reasonable doubt, that Appellant committed first degree murder in the course of, in furtherance of or in immediate flight from robbery, rape and kidnapping. The court's refusal to give instructions defining “in furtherance of,” “in the course of,” or “in immediate flight from” was within its discretion and did not violate Appellant's due process rights.

(13) The record shows the trial court properly instructed the jury that premeditation and intent were separate elements of aggravated first degree murder.

(14) The trial court properly refused Appellant's proposed instructions P-9A, P-9B, P-11, P-12, P-13, P-17, P-21, P-22 and P-23 at the penalty phase. P-9A, P-9B, P-11, P-12 and P-13 were misleading, repetitious, or misstatements of the law. The trial court's refusal of P-17, P-21, P-22 and P-23 did not render the jury's sentencing decision a product of irrational decision making. The jury received adequate instructions from the trial court. RCW 10.95 properly provides for “individualized determination” of the death penalty and appellate review to ensure the sentence is not imposed arbitrarily, disproportionately or as a result of passion or prejudice.

(15) CrR 4.7 mandates reciprocal pretrial discovery of evidence relevant to the penalty phase of a capital case.

(16) Our decision in State v. Gentry was filed only after the trial in this case. That decision allows victim impact testimony during the penalty phase of a capital case. Even under Gentry it would not have been error for the trial court to exercise its discretion not to allow victim impact testimony. The trial court did not err in denying victim impact testimony in this case.

We affirm the conviction and death sentence of Appellant Cal Coburn Brown in the King County Superior Court for the aggravated first degree murder of Ms. Holly C. Washa.

DURHAM, C.J., and DOLLIVER, GUY, JOHNSON and TALMADGE, JJ., concur. MADSEN, J., files a concurring and dissenting opinion joined by ALEXANDER and SANDERS, JJ.

MADSEN, Justice (concurring in part, dissenting in part).

I concur with the majority that Cal Brown's conviction should be affirmed. However, I would hold the trial court erred in admitting the testimony of Ms. Schnell, the victim in a criminal encounter with Brown in California. Further, I would hold the admission of that evidence was reversible error as to the sentencing phase of Defendant's trial. Consequently, although I concur in affirming Brown's conviction, I would remand for resentencing.

I. Guilt Phase In this case, the trial court permitted the California victim, Ms. Schnell, to testify, over objections by defense counsel, regarding the Defendant's violent behavior toward her during the days following the murder of Ms. Washa. Ms. Schnell testified how Brown restrained her with handcuffs and other devices, sexually assaulted her, forced her to write a check to him for $4,000, threatened her with a knife, and slit her throat.

The trial court ruled that Ms. Schnell's testimony was admissible under two exceptions to Evidence Rule (ER) 404, the res gestae exception and the common scheme or plan exception. The court stated the evidence “was relevant to material issues ... relating to premeditation, intent, and the four [statutory] aggravating factors” and that the “probative value of the testimony ... substantially outweighed its prejudicial effect.” Majority at 45 (referring to the aggravating factors found by the jury pursuant to RCW 10.95.020). The majority agrees.

In my view, the majority and the trial court were wrong in concluding that under ER 404(b) it was proper to admit Ms. Schnell's testimony during the guilt phase of Brown's trial. First, the Schnell testimony is not res gestae evidence. The trial court erred in admitting her testimony under that legal exception to ER 404. Second, ER 404 requires a trial court to balance the probative value against the prejudicial effect of evidence of other crimes and bad “acts” committed by the defendant. The trial court here correctly acknowledged the very prejudicial nature of the Schnell testimony. The court failed to recognize, however, that ER 404(b) evidence is generally inadmissible and the burden is on the State to establish that evidence of other offenses is not only relevant but “ necessary to prove an essential ingredient of the crime charged.” (Emphasis added). State v. Goebel, 40 Wash.2d 18, 21, 240 P.2d 251 (1952), overruled on other grounds by State v. Lough, 125 Wash.2d 847, 860, 889 P.2d 487 (1995); State v. Saltarelli, 98 Wash.2d 358, 362, 655 P.2d 697 (1982) (quoting Goebel, 40 Wash.2d at 21, 240 P.2d 251); State v. Brown, 113 Wash.2d 520, 782 P.2d 1013, 80 A.L.R.4th 989 (1989); State v. Lane, 125 Wash.2d 825, 831-32, 889 P.2d 929 (1995) (citing Saltarelli, 98 Wash.2d 358, 655 P.2d 697 and Goebel, 40 Wash.2d 18, 240 P.2d 251). Because the need for the testimony to prove an essential ingredient of the crimes charged did not overcome the extreme prejudice of that testimony, the admission of Schnell's testimony was error.

A. Res Gestae Evidence of other misconduct may be admissible under the res gestae exception “[t]o complete the story of the crime on trial by placing it in the context of nearby and nearly contemporaneous happenings.” 1 McCormick on Evidence § 190 at 799 (4th ed. 1992). See State v. Tharp, 96 Wash.2d 591, 594, 637 P.2d 961 (1981) (other misconduct admissible “in order that [the jury] have the entire story of what transpired on that particular evening”). In this case, the crimes against Ms. Washa were completed with her death, well before the Defendant's conduct with Ms. Schnell occurred. Thus, evidence that Defendant raped and cut Ms. Schnell's throat two or three days after the completion of his crimes “on trial” does not constitute res gestae evidence.

In oral argument before this Court the State conceded the same.

Talmadge, J.: You would not be contending that if common plan or scheme were not part of this case that all the details of the crimes that were committed against Ms. Schnell would be at all relevant in terms of res gestae as an exception?

Ms. Pahmeier: That's true.

....

Madsen, J.: Are you conceding that the evidence of the rape and the slashing of the throat would not be relevant if it were offered only for res gestae purposes?

Ms. Pahmeier: Yes, I would say it was definitely admitted under the ER 404(b) common scheme or plan.

....

Ms. Pahmeier: I'm not sure that the evidence of the incidents that took place then in California when he got there would come in except under the court's....

Alexander, J.: So it comes in under common scheme or plan or it doesn't come in at all?

Ms. Pahmeier: That's correct.

Tape of Oral Argument, side 7: 539-570.

Ms. Schnell's testimony does not meet the definition of res gestae evidence and its admission under that exception was erroneous.

B. Necessity of Evidence To constitute evidence of a common scheme or plan the prior misconduct must be an integral part of a larger or “overarching” scheme or plan. State v. Lough, 125 Wash.2d 847, 889 P.2d 487 (1995). Alternatively, the evidence may demonstrate a commonly used scheme or plan. See id. at 854-55, 889 P.2d 487. The State argues here that Schnell's evidence was admissible under the common scheme or plan exception because his crimes against Ms. Washa were part of his overarching plan to rape, rob, and assault Ms. Schnell. Assuming that the evidence was part of a common scheme or plan, it should, nevertheless, have been excluded because it was not necessary to prove an essential element of the crime charged.

The State says the Schnell evidence was necessary to rebut Defendant's claim that Ms. Washa's murder was an accident or an act of panic, not premeditated murder, and Defendant's claim that the sexual intercourse with Ms. Washa was consensual.

Initially, I find the State's justification for the Schnell evidence disingenuous, considering Defendant never testified and, in fact, offered no defense at all. Most of the evidence against Defendant came from his confession, which Defendant attempted to keep out of evidence. The confession was offered by the State in its case in chief as substantive evidence. Thus, it is the State's own evidence, contained in the confession, which the State is attempting to discredit with Schnell's testimony. The State should not be allowed to offer confession evidence, over defense objection, and then claim that ER 404 evidence is necessary to rebut Defendant's claim that he lacked premeditation to murder or that sex was consensual. This is particularly true where Defendant has not testified or offered any evidence regarding premeditation, motive, or intent. See State v. Lavaris, 106 Wash.2d 340, 346, 721 P.2d 515 (1986) (State may not call witness for primary purpose of impeaching him with otherwise inadmissible testimony).

More importantly, the State's assertions regarding the need for Schnell's testimony are simply not born out by the evidence. Rather than casting doubt on premeditation, Defendant's confession establishes it. In his confession, Defendant stated:

I realized if I left her there, she could just bang and clang and crunch and scream and be out very quickly. Otherwise, I would have just left her there and that's when I went to the back of the truck and I ... killed her.

Ex. 89, tape 2, side 1, at 630-650. Moreover, Defendant's discussion of being panicked was in relation to moving the car after he had killed her. “I forgot that trunks have like holes and things like that. So I panicked and left that place and drove around....” Ex. 89, tape 1, side 2 at 50-60. Defendant said he killed Ms. Washa because she was a stranger and it made sense for him to kill her. Ex. 89, tape 1, side 1 at 625-635. Clearly, Ms. Schnell's testimony was not necessary on the issue of premeditation.

Nor was the evidence necessary on the issue of consent. He stated in his confession that during intercourse he noticed she was looking at the door and thinking of escape. In response, Brown stated he decided “to have a little control ... make her a little more scared of me.” Ex. 89, tape 2, side 1. Further, the physical evidence overwhelmingly proved that intercourse was not consensual. See Majority at 556.

Finally, it is difficult to see how Defendant's conduct with Ms. Schnell had any bearing on his premeditation in the Washa murder or the consensual nature of his sexual contact with Ms. Washa. Defendant was not charged with premeditation in the Schnell crime, nor was he charged or convicted of sexual assault on Ms. Schnell.

Considering the overwhelmingly strong case for the State based on the physical evidence and Defendant's confession, it is clear that the real reason the State offered Schnell's testimony was to demonstrate the Defendant's propensity to rape, rob, and slash women's throats. The State candidly stated the “exclusion of Schnell's testimony would not have changed the outcome of this case.” Br. of Resp't at 109. The State thus concedes the evidence was not necessary.

In the present case, the exclusion of Schnell's testimony would not have changed the outcome of this case. The remaining evidence, including Brown's confession, is overwhelming. The heinous acts the defendant committed upon Washa were far more compelling than the streamlined testimony from Schnell concerning what the defendant did to her.

Br. of Resp't at 109.

C. Prejudice The Schnell evidence also fails the second part of the admissibility test; i.e., the probative value of the evidence must outweigh its prejudicial effect. Even assuming Schnell's testimony was admissible under the common scheme or plan exception to ER 404, her testimony was, at best, cumulative and of marginal probative value. See DeVore v. United States, 368 F.2d 396, 398 (9th Cir.1966) (evidence of other bad acts deemed improperly admitted because, in view of the cumulative nature of the evidence, the “prejudice to appellants was not balanced by any substantial gain to the government's case”). More importantly, the Schnell evidence was obviously “dragged in” for its prejudicial effect and the emotional response it would evoke. Carson v. Fine, 123 Wash.2d 206, 224-25, 867 P.2d 610 (1994). The prosecution was adding frosting to the cake.

D. Harmless Error The State's case, including the Defendant's confession and the physical evidence, was overwhelming. Thus, while admission of Schnell's testimony was error, it was harmless as to the guilt phase of this trial. It was not, however, harmless as to the penalty phase.

II. Penalty Phase Unlike the guilt phase, admission of the Schnell testimony is reversible error as to the penalty phase of this capital case. The majority and the trial court fail to recognize that the balancing of the potentially undue prejudicial effect of Ms. Schnell's testimony against its probative value cannot be limited only to issues relevant to the guilt phase of this trial. A jury in a capital crime trial deliberates on an entirely separate question during the sentencing phase. Therefore, in deciding whether to admit evidence in the guilt phase of a capital trial, the trial court must weigh the effect of such potentially prejudicial evidence against the probative value in the sentencing phase of the trial. Because any probative value of Ms. Schnell's testimony was far outweighed by its prejudicial impact during the penalty phase, admission of such testimony during the guilt phase of the trial was an abuse of discretion.

The decision to admit evidence of other crimes, wrongs, or acts “lies largely within the sound discretion of the trial court” and “will not be reversed on appeal absent a showing of abuse of discretion.” State v. Laureano, 101 Wash.2d 745, 764, 682 P.2d 889 (1984). However, a review of the evidentiary decision at issue here is also influenced by the fact that the evidence that was admitted had the potential to affect the imposition of the death penalty, which this Court recognizes “qualitatively differs from all other punishments.” State v. Lord, 117 Wash.2d 829, 888, 822 P.2d 177 (1991), cert. denied, 506 U.S. 856, 113 S.Ct. 164, 121 L.Ed.2d 112 (1992). Because of this qualitative difference, review of a claimed error associated with the sentencing phase of a capital case must receive a more careful review of the record to assure that “there [is] reliability in the determination that death is the appropriate punishment.” Id. See also Kwan Fai Mak v. Blodgett, 754 F.Supp. 1490, 1493-94 (W.D.Wash.1991) (“The Constitution requires the most careful scrutiny of every case in which a person has been sentenced to death.”), aff'd, 972 F.2d 1340 (9th cir.1992), cert. denied, 507 U.S. 951, 113 S.Ct. 1363, 122 L.Ed.2d 742 (1993).

A careful review of the record of this case indicates that the State properly notified the Defendant of the State's intent to seek the death penalty, and that each member of the jury was questioned at voir dire about his or her views with respect to the death penalty. It is, therefore, beyond debate that the parties, as well as the trial judge, were well aware that a special sentencing proceeding, as provided by RCW 10.95.020-.070, would be required if the jury found Brown guilty as charged of aggravated first degree murder. We must also assume that the trial judge was aware that it “is well settled that all evidence which is admissible in the guilt phase [of a capital case] is also admissible in the penalty phase.” In re Lord, 123 Wash.2d 296, 322, 868 P.2d 835, cert. denied, 513 U.S. 849, 115 S.Ct. 146, 130 L.Ed.2d 86 (1994) (citing State v. Bartholomew, 101 Wash.2d 631, 643, 683 P.2d 1079 (1984) and State v. Mak, 105 Wash.2d 692, 720-21, 718 P.2d 407, cert. denied, 479 U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 599 (1986)).

During the penalty phase, the essential question that the jury must answer is whether it is “convinced beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency.” RCW 10.95.060(4). In order to assure that the special sentencing proceeding in a capital case comports with “state and federal constitutional standards,” the Court has specifically held that the province of the jury in such proceedings “must be limited to mitigating evidence .... and mitigating factors only.” Bartholomew, 101 Wash.2d at 642, 683 P.2d 1079 (emphasis added). As we stated in Bartholomew, “in most cases the prosecution may open only with the defendant's criminal record and evidence which would have been admissible at the guilt phase of the trial.” Bartholomew, 101 Wash.2d at 643, 683 P.2d 1079. Therefore, the State acted properly in this case when it sought to admit evidence that Brown has a criminal record of prior convictions. However, because the “introduction of a certified copy of the judgment and sentence is the preferred way to introduce a prior conviction when it is admissible,” Ms. Schnell's detailed testimony would not have been admissible at the penalty phase unless it would have been admissible at the guilt phase, or offered in specific rebuttal to a mitigating factor raised by the Defendant. State v. Gentry, 125 Wash.2d 570, 638, 888 P.2d 1105, cert. denied, 516 U.S. 843, 116 S.Ct. 131, 133 L.Ed.2d 79 (1995). As explained above, the evidence was not admissible during the guilt phase.

Looking to the penalty phase, it is indisputable that Ms. Schnell's testimony is probative on the question of whether leniency is warranted. However, one of the reasons, if not the primary reason, such evidence is probative is because of its highly prejudicial nature. It is precisely for this reason that it is generally a violation of the Defendant's due process rights for the jury to even consider such evidence, unless it is relevant to rebut a mitigating factor that has been first raised by the Defendant. Lord, 117 Wash.2d at 890, 822 P.2d 177 (“[W]hen the defendant presents evidence of mitigating circumstances, the prosecution is not restricted to the record of convictions. The State is entitled to ... introduce relevant evidence to rebut defendant's evidence so that the jury receives a balanced and complete picture.”) This is why this Court has ruled that although the State may, in the opening of the special sentencing proceeding, provide the jury with certified copies of judgments and sentences concerning defendant's prior convictions, it may not present additional evidence relating to those crimes unless such evidence relates to mitigating evidence or factors raised by the defendant. See Bartholomew, 101 Wash.2d at 642, 683 P.2d 1079.

With respect to the question of whether leniency is warranted, Ms. Schnell's account of Brown's violent acts constituting sexual assault and rape, offenses Brown was neither charged with nor convicted of, posed a significant danger of being unfairly prejudicial. See, e.g., State v. Bowen, 48 Wash.App. 187, 738 P.2d 316 (1987); State v. Ramirez, 46 Wash.App. 223, 730 P.2d 98 (1986); State v. Harris, 36 Wash.App. 746, 677 P.2d 202 (1984) (admission of such evidence was reversed because of prejudicial effect on a jury's deliberation of a defendant's guilt or innocence). The trial court should have considered the potential prejudice in the penalty phase when deciding in the guilt phase whether to admit the evidence.

The Supreme Court of New Jersey expressed similar concerns about the impact of guilt phase evidence on the jury's penalty determination in a capital case. State v. Erazo, 126 N.J. 112, 594 A.2d 232 (1991). The court said “[w]hen the same jury hears both phases of such a case, evidence admitted on the guilt phase may sometimes taint the penalty phase. With the stakes so high, the possibility of prejudice on the penalty phase persists as a cause for continuing concern.” Id. 594 A.2d at 242.

Upon properly considering the prejudicial impact of the evidence in the penalty phase, the conclusion is unavoidable that the evidence was so overwhelmingly prejudicial to the jury's sentencing determination that it should not have been admitted. While admission may have been harmless as to the guilt phase, the same cannot be said when the jury's subjective determination of life or death was at issue.

In sum, the nature of the ER 404(b) evidence in this case was so inflammatory that the trial court's failure to balance the probative value of the evidence against the prejudicial impact as it relates to the penalty phase inquiry constitutes an abuse of discretion, for it cannot be said that there is reliability in the determination that death is the appropriate punishment. Lord, 117 Wash.2d at 888, 822 P.2d 177. (“Because the death penalty qualitatively differs from all other punishments, there must be reliability in the determination that death is the appropriate punishment.”)

To be assured of such reliability, I would remand for a new sentencing proceeding where Ms. Schnell's testimony is not presented to a new jury impaneled to determine Defendant's sentence.

Alexander and Sanders, JJ., concur.

Brown v. Uttecht, 530 F.3d 1031 (9th Cir. 2008). (Habeas)

Background: State prisoner filed petition for writ of habeas corpus after his conviction for aggravated murder in the first degree and imposition of death penalty, 132 Wash.2d 529, 940 P.2d 546, had been affirmed on appeal. The United States District Court for the Western District of Washington, John C. Coughenour, Chief Judge, denied petition. Prisoner appealed. The Court of Appeals for the Ninth Circuit, 451 F.3d 946, reversed and remanded. State petitioned for certiorari which was granted. The Supreme Court, --- U.S. ----, 127 S.Ct. 2218, 167 L.Ed.2d 1014, reversed and remanded. The Court of Appeals took up issue on remand.

Holdings: The Court of Appeals, Kozinski, Chief Circuit Judge, held that: (1) decision of trial counsel to not obtain psychiatric evaluation of prisoner was not ineffective assistance; (2) decision of trial counsel to not call licensed professional counselor as witness was not ineffective assistance; (3) decision of trial counsel to not cross-examine psychiatrist who testified on behalf of prosecution was not ineffective assistance; and (4) death penalty trial reports could be excluded from consideration. Affirmed. Reinhardt, Circuit Judge, filed dissenting opinion.

KOZINSKI, Chief Judge:

On remand from the Supreme Court, Uttecht v. Brown, --- U.S. ----, 127 S.Ct. 2218, 167 L.Ed.2d 1014 (2007), we consider whether defense counsel's performance was deficient.

Facts After raping and murdering Holly Washa,FN1 Brown was convicted of aggravated first-degree murder in Washington. With the aid of an investigator, a social worker and a mitigation specialist, Brown's three experienced attorneys put on a thorough mitigation case during the penalty phase of Brown's trial. They (1) created a 250-page life chronology detailing Brown's social and medical history, and presented most of this information at trial; (2) introduced evidence that Brown had a mental disorder; (3) called Dr. Maiuro, a clinical psychologist; and (4) called multiple character witnesses, such as family members. Nonetheless, the jury sentenced Brown to death.

FN1. For a more detailed discussion of the facts, see the Washington Supreme Court's opinion in Brown's direct appeal, State v. Brown, 132 Wash.2d 529, 940 P.2d 546, 555-59 (1997) (en banc).

After exhausting his direct appeals and state collateral review, Brown petitioned for a writ of habeas corpus in federal court, raising a number of constitutional claims regarding his trial and sentencing.FN2 The district court denied his petition after holding an evidentiary hearing. Brown appeals on three issues relating to his death sentence: the facial validity of the Washington death penalty statute, the exclusion of jurors and ineffective assistance of counsel. We also expanded the certificate of appealability to include whether the district court erred in excluding death penalty trial reports.

FN2. Because Brown filed his habeas petition after April 23, 1996, we apply the “substantive review standards of the Anti-terrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) ( ‘AEDPA’).” Webster v. Woodford, 369 F.3d 1062, 1066 (9th Cir.), cert. denied, 543 U.S. 1007, 125 S.Ct. 626, 160 L.Ed.2d 471 (2004); see also Lindh v. Murphy, 521 U.S. 320, 327, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).

We upheld Washington's death penalty statute, Brown v. Lambert, 451 F.3d 946, 947-48 (9th Cir.2006), but ruled that a juror was unconstitutionally excluded, id. at 948-54. The Supreme Court then reversed us on the juror exclusion issue. Uttecht, 127 S.Ct. at 2222. We therefore affirm the district court's rulings that the Washington death penalty statute is facially valid, see Brown v. Lambert, 451 F.3d at 947-48, and that the jury selection for Brown's trial was constitutional, see Uttecht, 127 S.Ct. at 2222. We now address Brown's ineffective assistance of counsel claim, including the district court's exclusion of the death penalty trial reports.

Analysis

1. To establish ineffective assistance of counsel, Brown must show that defense counsel's performance was objectively deficient and prejudiced his defense. See Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir.2007) (en banc) (citing Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Under AEDPA, Brown must also show that the state court adjudication was objectively unreasonable. Id. at 1125-26 (citing 28 U.S.C. § 2254(d)). Brown's lawyers presented significant mitigating evidence, unlike other cases where counsel were deficient for presenting hardly any mitigation case at all. Cf., e.g., Rompilla v. Beard, 545 U.S. 374, 381-86, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005); Frierson v. Woodford, 463 F.3d 982, 989-93 (9th Cir.2006). Nevertheless, Brown argues that his representation was unconstitutionally deficient because his lawyers did not (1) call a psychiatrist, (2) call Sally Schick, Brown's former prison counselor, and (3) cross-examine the prosecution's psychiatrist, Dr. Brinkley.

a. Failure to call a psychiatrist More than nine months before trial, defense counsel learned that Brown may have had a mental disorder. Acting on the advice of a neuropsychologist, counsel retained Dr. Maiuro, a well-respected clinical psychologist who diagnosed Brown as manic, and as suffering from antisocial personality disorder and sexual sadism. Counsel designed an extensive mitigation case based on the theory that Brown's troubled home life had led to these mental disorders, and that had Brown been properly treated upon his release from prison shortly before the killing, he might not have committed the crime. At the penalty phase trial, counsel presented witnesses to testify at length regarding Brown's upbringing and social history, and also put on extensive testimony from Dr. Maiuro concerning Brown's mental problems. Counsel debated whether to also retain a psychiatrist, but they ultimately concluded that a psychiatric evaluation wouldn't provide as much useful information as a psychological evaluation, including the administration of formal psychological testing. At trial, Dr. Maiuro competently testified that Brown suffered from all three mental disorders and explained why he had diagnosed them. He further testified that manic disorder was generally treatable with lithium.

Dr. Maiuro was qualified to diagnose Brown's mental condition and testify that Brown could have been treated with lithium. But Dr. Maiuro couldn't prescribe lithium as he isn't a physician. Consequently, just before trial, Dr. Maiuro recommended that defense counsel consult a psychiatrist, and specifically recommended Dr. Brinkley. But when defense counsel approached Dr. Brinkley, they learned that he had already agreed to testify for the prosecution. Because it was so close to trial and defense counsel had previously decided not to retain a psychiatrist, they didn't contact any other psychiatrists. At trial, Dr. Brinkley testified that, after his review of Brown's medical records, he could see no basis for prescribing lithium, as there was “no clear indication” that Brown had “a disorder for which lithium was appropriate.”

The prosecution's closing argument relied on Dr. Brinkley's testimony to argue that Dr. Maiuro was “kind of out on a limb” in the part of his testimony concerning lithium. The prosecution did not, however, argue that Dr. Maiuro was wrong in his diagnosis of manic disorder. It only reminded the jury that “in Dr. Brinkley's opinion,” Brown “did not have any sort of disorder that ... would suggest that lithium would be appropriate.” It also emphasized Dr. Maiuro's testimony that Brown was a sexual sadist who “took pleasure ... in some way [from] sex and violence,” and did not question Dr. Maiuro's diagnosis of antisocial personality disorder. Defense counsel responded that if Brown should not have been on lithium, then the fact that Oregon had him take lithium could have caused “vast and far reaching complications” affecting his mental state, thus reducing his culpability. Defense counsel also emphasized Brown's “sexual sadism” as a mitigating factor because it arose from his difficult childhood. (Brown does not argue that his counsel should not have introduced the sexual sadism evidence.)

Brown argues that counsel were deficient for failing to call a psychiatrist to rebut Dr. Brinkley's testimony that lithium wouldn't have helped Brown. Brown suggests that only someone who was able to prescribe lithium himself could have affirmatively rebutted Dr. Brinkley's testimony that Brown did not have a condition that was treatable with lithium. But Dr. Maiuro was qualified to testify about lithium, even though he was not himself licensed to prescribe it, and everyone agrees that he was widely respected. The additional weight, if any, of testimony by a psychiatrist was outweighed by other considerations that defense counsel took into account. Retaining a psychiatrist would have required a continuance. Counsel offered two legitimate reasons for not seeking a continuance: They wanted the jury to deliberate over the Christmas holiday, when jurors might be more merciful, and they wanted to give the prosecution less time to prepare its penalty phase case.

In any event, it's far from clear that Dr. Brinkley's testimony was particularly damaging to defense counsel's mitigation theory. While Dr. Brinkley cast some doubt on whether Brown had a mental disorder that was treatable with lithium, he did not ultimately dispute the larger defense theory-that Brown developed serious mental problems as a result of his difficult family history. As defense counsel put it at closing argument, a pattern of ongoing abuse led to “adult disorders [that] created major problems” for Brown. Defense counsel's theory was supported by an investigation yielding hundreds of pages of material, and was bolstered at trial through extensive testimony from Brown's family members. This foundation was not seriously undermined by Dr. Brinkley.

Nor, as we have noted, did Dr. Brinkley squarely dispute Dr. Maiuro's diagnosis of manic disorder, or cast any doubt on the diagnoses of antisocial personality disorder and sexual sadism. Defense psychiatric testimony might or might not have convincingly rebutted Dr. Brinkley's views on the usefulness of lithium for Brown's mental state. But it would not have greatly changed the mitigation case put before the jury.

Furthermore, retaining a psychiatrist involved significant risk. The trial court had ruled that, after the guilt phase verdict, defense counsel were required to give the prosecution all written reports they had concerning Brown's mental health. See State v. Pawlyk, 115 Wash.2d 457, 800 P.2d 338, 349-50 (1990) (en banc). By retaining a psychiatrist, therefore, defense counsel would have risked obtaining unfavorable written reports (like Dr. Brinkley's), which they would then have had to turn over to the prosecution. This was not a trivial risk, as several of the mental health experts who evaluated Brown had not diagnosed him with manic disorder-the theory advanced by the defense.

Using the “ ‘fabled twenty-twenty vision of hindsight,’ ” Edwards, 475 F.3d at 1127 (quoting LaGrand v. Stewart, 133 F.3d 1253, 1271 (9th Cir.1998)), we now know that Brown's habeas counsel eventually found Dr. Scher, a psychiatrist who could testify that Brown had bipolar disorder and could have been treated with lithium. But Brown's trial counsel couldn't have known Dr. Scher's ultimate opinion, as she didn't reach her conclusion until almost a decade after the trial.FN3

FN3. Even if Dr. Scher had testified, the prosecution would have forced her to make many damaging concessions during cross-examination. Dr. Scher admitted that Brown knew right from wrong, and that he was in control of his behavior. She is not a forensic psychiatrist, and has no expertise in sexual sadism. In fact, she was aware of no literature supporting her view that lithium treatment would have made Brown less likely to commit a sexually violent crime, nor did she know of any tests or studies that she could have done to reinforce that opinion. Furthermore, the prosecution's argument that Dr. Brinkley was best qualified to discuss connections between lithium and Brown's crime could have been strengthened had Dr. Scher testified, because she had consulted with Dr. Brinkley about proper medications in other circumstances. It's therefore not clear that Dr. Scher's testimony would have helped Brown; in all likelihood, it would have hurt him.

Ultimately, it doesn't matter whether we agree with trial counsel's decision not to obtain a psychiatric evaluation after Dr. Maiuro recommended that they do so. What matters is that defense counsel used “sound trial strategy,” Edwards, 475 F.3d at 1126 (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052), in responding to Dr. Maiuro's suggestion. Counsel did not ignore the suggestion; they followed up on it and even contacted Dr. Brinkley, the psychiatrist that Dr. Maiuro recommended as likely to give a favorable evaluation. When Dr. Brinkley proved unavailable and agreed to be a witness for the state, the difficulties and risks of obtaining other psychiatric evaluations became even more acute. We can't say that trial counsel weighed them in an irrational or unprofessional manner-or even that they made the wrong choice. The district court did not err in finding that petitioner has not shown ineffective assistance of counsel on this point.

b. Failure to call Sally Schick

Schick is a licensed professional counselor who evaluated Brown regularly for two years while she was working at an Oregon prison where Brown had previously been incarcerated. She believed that Brown had a mental disorder, and requested that Brown be treated with lithium. Although at least one Oregon prison system psychiatrist disagreed with Schick's diagnosis, she found one who prescribed him lithium for a five-to-six-month-long trial period. Schick only observed Brown for a month after the trial started, so she didn't know whether Brown completed the lithium trial. During the time she watched Brown, she saw at most a “little bit” of “gradual change” in his behavior. After his release, Brown chose to stop taking lithium before the amount he was given on release ran out.

Counsel contacted Schick before trial, and decided not to call her as a witness. Instead, they introduced Schick's notes and Dr. Maiuro discussed them during his testimony. Counsel were surely not incompetent in making this use of Schick's evaluation of Brown, rather than having her take the stand. Schick was not an M.D. or a Ph.D.; she was not like Dr. Maiuro-a university professor and a widely-published author in his field, who was viewed even by Dr. Brinkley as highly competent. She was merely a licensed professional counselor, who was not competent even to perform psychological testing. Indeed, an Oregon psychiatrist had explicitly disagreed with her recommendation that Brown should take lithium. Furthermore, had Schick testified, her testimony would have been challenged on the same basis as Dr. Maiuro's, as she could not prescribe lithium. Worse yet, Schick could have been impeached with treatment reports she filled out after observing the first month of Brown's trial, in which she indicated that despite the lithium trial, there had been, at worst, “no change” in his condition-and only “slight improvement” at best. Plus, the prosecution could have forced her to make various damaging concessions, including that she had done nothing to determine whether Brown was malingering and that, even if her diagnosis was correct, manic disorder does not “cause somebody to commit sexually violent crimes.”

Counsel did not ignore or overlook the possibility of calling Schick to the stand and made a reasonable judgment to use her notes instead. We can't say that this was unconstitutionally deficient representation.

c. Cross-examination of Dr. Brinkley

Brown argues that cross-examining Dr. Brinkley could have established that he was biased because he didn't interview Brown before making his diagnosis, and forced Dr. Brinkley to concede that Dr. Maiuro was competent to render a psychological diagnosis.

We give “great deference” to “counsel's decisions at trial, such as refraining from cross-examining a particular witness.” See Dows v. Wood, 211 F.3d 480, 487 (9th Cir.2000). Applying that standard, we cannot say that defense counsel's decision was objectively unreasonable. Defense counsel were prepared to cross-examine Dr. Brinkley, but they made the tactical decision not to. Dr. Brinkley's conclusions were based solely on records from the Oregon prison, and defense counsel's theory was that Oregon officials had not properly treated Brown's mental disorder. Counsel therefore reasonably believed that Dr. Brinkley's testimony didn't harm their defense. By not cross-examining Dr. Brinkley, they avoided the risk that his testimony would conflict with their own evidence, which showed that Brown had manic disorder. Dr. Brinkley testified at the evidentiary hearing that he believed Brown was not manic but was, instead, a sociopath. The jury may not have bought defense counsel's theory, but counsel certainly weren't unreasonable for advancing it, or for avoiding any direct contradiction of it by not cross-examining Dr. Brinkley.

The evidentiary record developed on habeas supports defense counsel's determination at trial that a cross-examination of Dr. Brinkley “might well have backfired.” Yarborough v. Gentry, 540 U.S. 1, 7, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003) (per curiam). Indeed, during oral argument before us, Brown's habeas counsel conceded that the cross-examination at Dr. Brinkley's deposition (which was taken for the district court's evidentiary hearing) could have hurt Brown's mitigation case had it been conducted at trial. See Oral Argument at 6:13. After all, the record indicates that the prosecution did not have Dr. Brinkley interview Brown because defense counsel was challenging his authority to do so. And, in any event, Dr. Brinkley testified at the evidentiary hearing that he had no interest in doing so, because he thought Brown was such a liar that any interview would be pointless. Dr. Brinkley also testified that the Oregon prison records were sufficient to diagnose Brown. Furthermore, at the evidentiary hearing, Dr. Brinkley made his view clear that, even if Brown were manic, he was not suffering from a manic episode at the time he raped and murdered Washa. Dr. Brinkley also testified that manic episodes are not associated with the sort of premeditated behavior Brown displayed. So even if Brown had been manic and on lithium, the lithium would not, in his view, have prevented the crime. It was reasonably foreseeable that Dr. Brinkley would have come up with similarly damaging testimony if cross-examined at trial. Brown's counsel therefore weren't deficient for failing to cross-examine Dr. Brinkley. Rather, they made a tactical decision, based on their theory of the case, not to give Dr. Brinkley an opportunity to undermine that theory.

2. The district court didn't abuse its discretion, Tritchler v. County of Lake, 358 F.3d 1150, 1155 (9th Cir.2004), in excluding the death penalty trial reports, which were essentially summaries of other Washington death penalty cases. Prior to the district court's evidentiary hearing, the parties were required to submit a pre-trial order identifying all exhibits. Brown didn't identify the reports in the pre-trial order, and he didn't offer them during the evidentiary hearing. Instead, he presented the reports as attachments to his written closing statement. The prosecution moved to strike the reports and, not surprisingly, the district court granted the motion.

Even putting aside a district court's broad “discretion to exclude an exhibit not identified in the pretrial order,” Swinton v. Potomac Corp., 270 F.3d 794, 809 (9th Cir.2001), evidence must surely be proffered by the time of the evidentiary hearing, so that the other side can have a fair opportunity to address or rebut it. The district court certainly did not abuse its discretion in failing to consider evidence that was so untimely.

* * * Brown's counsel weren't objectively deficient, as they made reasonable strategic decisions by not calling a psychiatrist, not calling Sally Schick and not cross-examining Dr. Brinkley. The district court therefore correctly rejected Brown's ineffective assistance of counsel claim. Nor did the district court abuse its discretion in excluding the death penalty trial reports.

AFFIRMED.

REINHARDT, Circuit Judge, dissenting:

The majority errs in affirming the death sentence of Cal Brown. Brown's attorneys made a highly deficient presentation regarding the most important aspect of his mitigation case-that Brown suffered from a serious mood disorder that was treatable with lithium. Had they performed at a level consistent with the prevailing professional norms, the jury would have been aware that with the proper medication, Brown would have had greater control over his impulses and would have been less likely to commit the crime. The jurors would also have learned that with the proper treatment, Brown would not be a threat in the future. I cannot say with confidence that had the jury possessed this information it would have voted unanimously to impose the death penalty.

Despite Brown's counsel's knowledge that the medical treatment of their client's mental disorder would be critical to their mitigation theory and despite the fact that counsel were told by their own expert psychologist, Dr. Maiuro, that they should retain a psychiatrist to testify on that subject, they failed to do so. Instead, Dr. Maiuro remained their sole expert, and he was forced to admit on the stand that he was not qualified to prescribe medication and could not testify about whether Brown's disorder should be treated with lithium or whether proper treatment might have prevented the crime. Additionally, Brown's attorneys failed to call his counselor Sally Schick, the only mental health professional who had the opportunity to observe and treat him for a sustained period of time, and the one who first recommended that he receive lithium treatment. Finally, Brown's attorneys failed to cross-examine Dr. Brinkley, the State's expert psychiatrist, after his devastating testimony that Brown did not have any disorder that could be treated with lithium; by implication, Dr. Brinkley suggested that Brown did not have a serious mental disorder and that no medical treatment of any kind could have had a positive effect on his conduct. Moreover, because of counsel's failure to cross-examine Dr. Brinkley, the jury did not learn that his testimony was based on his examination of Brown's prison records alone. The prosecutor took advantage of Brown's counsel's ineptitude and seriously undermined the case for mitigation by emphasizing in his closing argument the lack of qualifications of Brown's expert and reminding the jury that Dr. Brinkley's testimony had not been challenged.

Brown's counsel's deficient performance prejudiced him because the jury never heard the most convincing argument for why their client's life should be spared. Brown's mitigation case consisted of two related contentions. The first was that he had a mental disorder. If defense counsel had put on a proper case to try to persuade the jury that Brown suffered from a serious mental illness, at least some of the jurors might have understood his crimes to be a manifestation of that disorder and perceived him to have had less control over his heinous acts than a mentally healthy person.

The second part of the mitigation theory was that Brown's disorder could have been effectively managed medically with lithium. The lithium issue is important because it reinforces the mental illness argument and because it illustrates the extent to which Brown's actions were influenced by that disorder. Lithium is a strong medication that is closely linked to serious mental illness in the popular consciousness. Any disorder that required lithium treatment might have been considered quite severe in the eyes of the jurors. Thus, they could more readily have understood that the defendant's conduct was influenced by a mental disorder that could be treated medically. If the jurors had heard the testimony of a psychiatrist like Dr. Scher, who would have said that lithium would have made Brown less likely to commit the crime, at least some of them might have attributed less of the blame for the crime to Brown's character and more of it to his physiological condition. Additionally, although the issue of future dangerousness was never argued at trial, the jury likely would have taken into account that if Brown were properly treated, he would no longer pose as great a threat to society. Counsel's deficient performance prejudiced Brown because it rendered both prongs of the mitigation theory unconvincing. There is no question that defense counsel failed to prove the second part of the mitigation case-that Brown's illness could be effectively treated with lithium and that such treatment would have made Brown less likely to commit crimes. The defense's only expert witness admitted that he was unqualified to testify about lithium. The State emphasized this in cross-examination and in its closing argument and its expert testified that Brown did not have a disorder that could be treated with lithium. The jury had no choice but to conclude that lithium would have had no effect on Brown, despite counsel's claim to the contrary in his opening statement.

Defense counsel's deficient performance also undermined the first claim-that Brown had a serious disorder. Brown's lawyers failed to cross-examine Dr. Brinkley and thus allowed the prosecutor to argue to the jury that the defense must agree with Dr. Brinkley's assessment that Brown did not suffer from any disorder that could be treated with lithium. Without cross-examination, the jury was not informed of the fact that Dr. Brinkley had never met with Brown, as is customary before diagnosing mental disorders, and that he did not review all of Brown's records including those that contained information that he later admitted could have been important to his diagnosis. All it heard was that Dr. Brinkley concluded that Brown did not have a mental illness that would warrant treatment with lithium and that, as the prosecution argued, the defense did not challenge that conclusion. The jury was also told by the prosecutor, with considerable effectiveness, that Dr. Maiuro was not qualified to testify regarding lithium. The jury might well have concluded that if Dr. Maiuro was not as qualified as Dr. Brinkley to testify about lithium, he was not as qualified to testify about mental disorders in general. Given Dr. Brinkley's unimpeached testimony and the lengthy and contentious cross-examination of Dr. Maiuro, the jury likely credited Dr. Brinkley's testimony over Dr. Maiuro's and may have concluded that Brown did not suffer from a mental disorder at all. In reality, the absence of a defense psychiatrist and the failure to cross-examine Dr. Brinkley resulted in the almost total undermining of defendant's mental illness mitigation argument. Even if the jury believed that Brown had psychological problems, they likely assumed that his disorders could not have been particularly severe if they did not require any lithium treatment. (No one suggested that any other form of medical treatment would have been appropriate.)

There is a reasonable probability that if defense counsel had presented the testimony of a psychiatrist, as well as that of Brown's counselor, and if they had cross-examined Dr. Brinkley, they would have raised a sufficient question in the mind of at least one juror as to whether Brown suffered from a serious mental disorder that could have been controlled with medical treatment, and that at least one juror would have concluded that the prosecution had not proven beyond a reasonable doubt that there were no sufficient mitigating circumstances to warrant the imposition of a life sentence. Counsel's failures prejudiced Brown by casting substantial doubt on the most important aspect of his mitigation case. Such a deficient and prejudicial performance severely undermines one's confidence in the outcome of the penalty proceeding. I would reverse Brown's death sentence so that the state could re-try the penalty phase or impose a sentence of life without parole.

I. Failure to Call a Psychiatrist Brown's defense counsel knew that the lithium issue would be an important part of their case, and their expert witness, Dr. Maiuro, a psychologist, advised them that he was not qualified to testify about lithium. He recommended that they retain a psychiatrist who was. Nevertheless, Brown's lawyers not only failed to obtain the services of a psychiatrist to testify as an expert at the penalty phase, they never even consulted one. This failure was objectively unreasonable under then-applicable prevailing professional norms.

According to the ABA Guidelines at the time of trial, in preparation for the penalty phase, counsel should consider, “expert witnesses to provide medical, psychological, sociological or other explanations for the offense(s) for which the client is being sentenced, to give a favorable opinion as to the client's capacity for rehabilitation, etc. and/or to rebut expert testimony presented by the prosecutor.” FN1 Defense counsel's primary mitigation argument at the penalty phase was that Brown suffered from a mood disorder for which he did not receive adequate medical treatment-treatment that could have lessened his symptoms and improved his impulse control. The testimony of a psychiatrist was necessary to show that Brown's disorder could have been effectively managed medically and to rebut the testimony of Dr. Brinkley that Brown did not suffer from a mood disorder for which lithium was appropriate.

FN1. American Bar Association Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases, 11.41(C) (1989), http:// www. abanet/ org/ death penalty/resources/docs/1989Guidelines.pdf. Counsel was on notice that a psychiatrist would be needed to testify about the proper medical treatment of Brown's disorder. Lin Marie Hupp, one of Brown's attorneys, testified at the evidentiary hearing that defense counsel understood the importance of the lithium issues because “[h]aving something that is physiologically based is sometimes easier for jurors to understand ... that you can give somebody a pill for and fix them is sometimes easier for jurors to understand than just ... the person is a bad person.” Hupp's testimony demonstrates that the lawyers understood that if they showed that Brown's disorder could be medically treated, it would enable the jurors to comprehend the seriousness of the disorder, understand that it contributed to his conduct, and thus recognize its mitigating effect. Additionally, William Schipp, the staff social worker, explained to Brown's attorneys the difference between psychologists and psychiatrists, so they understood that Dr. Maiuro, a psychologist, would be unable to testify about the proper medical treatment of Brown's disorder. Moreover, Dr. Maiuro personally advised the defense that he was unable to testify about medical matters, recommended that they consult a psychiatrist, and gave them referrals. Perhaps the best evidence that defense counsel understood that it was crucial for them to hire an expert psychiatrist is the fact that they attempted to do so when, after receiving Dr. Maiuro's advice, they contacted Dr. Brinkley and tried to enlist his services.

At the evidentiary hearing, none of the defense attorneys offered a reason for their failure to seek a psychiatrist either months before trial or after Dr. Brinkley informed them that he was unavailable because he was testifying for the State. Kern Cleven testified that he and his colleagues knew about Brown's mood disorder six to eight months before trial and that “we were aware that we would like to have another kind of an expert ... a psychiatrist.” When Cleven was asked why they did not contact one, he said: “I can't for the life of me think of why it was that late in the game and we didn't have a psychiatrist on board yet. I wish I could provide you with a reason why that was, I just can't.” He also recalled that there was no impediment to contacting another psychiatrist to testify once they knew that Dr. Brinkley was unavailable. Terry Lee Mulligan testified that he did not recall there being “a specific decision made” or “conversations about” consulting any other psychiatrists.

Given the overwhelming evidence that defense counsel knew that it was necessary to consult a psychiatrist and present his expert testimony in order to establish that Brown had a disorder that could and should have been treated with lithium, and given that counsel can offer no reason why they failed to consult and present the testimony of a psychiatrist, I would hold that counsel's failure to retain such an expert was unreasonable under existing professional norms at the time and thus amounted to deficient performance under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

The majority suggests strategic justifications for defense counsel's decision not to present the testimony of a psychiatrist at the penalty phase. Although we are highly deferential to counsel's strategic decisions at trial, Strickland, 466 U.S. at 689, 104 S.Ct. 2052, counsel did not advance at the evidentiary hearing any of the explanations the majority gives for their failures. When counsel is unable to provide us with strategic reasons for trial decisions, we are not permitted to engage in “ post hoc rationalization.” Wiggins v. Smith, 539 U.S. 510, 526-27, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). Instead, we must evaluate counsel's performance by the standard established in Strickland-“reasonableness under prevailing professional norms.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052. Because there is no reasonable explanation for counsel's failure to consult and retain a psychiatrist, the majority's attempted rationalizations are unavailing.

The majority claims that defense counsel decided that they would hire a psychologist instead of a psychiatrist because “a psychiatric evaluation wouldn't provide as much useful information as a psychological evaluation.” Maj. Op. at 1033. This is a puzzling conclusion given that defense counsel knew well in advance of trial that Brown's medical treatment for his mental illness would be a critical mitigation issue and a psychologist would not be qualified to testify on that subject. Moreover, at the habeas corpus evidentiary hearing, Schipp testified that initially defense counsel decided to pursue a psychological evaluation for the reason cited by the majority. However, he offered no explanation as to why, after psychological testing showed that Brown had a mental disorder that could be treated with lithium, counsel did not consult a psychiatrist. At that point, all of the psychological tests in the world could not have produced the one “useful” piece of evidence that was necessary-expert testimony that Brown's disorder could and should be treated with lithium. Additionally, the fact that defense counsel attempted to hire Dr. Brinkley belies the explanation that they did not believe a psychiatrist would be useful.

Nor, as the majority suggests, did Brown's defense counsel decide not to seek an expert psychiatrist in order to avoid a continuance. Maj. Op. at 1034-35. None of Brown's lawyers testified that seeking another psychiatrist would have required a continuance; indeed the first time this explanation was offered was in the State's appellate brief-unsurprisingly with no citation to the record.FN2 Moreover, no one suggests any reason why seeking another psychiatrist would have required a continuance. Defense counsel sought to obtain Dr. Brinkley's services for the penalty phase on the first day of the guilt phase proceeding. Either they believed that they could hire Dr. Brinkley at that time to testify as an expert witness without creating a need for a continuance, or they believed that the testimony of an expert psychiatrist was more important than the timing of the penalty phase. If it was the latter, then failing to contact another psychiatrist after Dr. Brinkley advised them of his unavailability was obviously unreasonable. If it was the former, there is no reason why a different psychiatrist would have required more time than Dr. Brinkley. In that case, no continuance would have been necessary at all had they acted promptly. In any event, the psychiatrist whose services defense counsel obtained would not have had to testify until the penalty phase. Counsel could have contacted a different psychiatrist on the same day that Dr. Brinkley refused and that psychiatrist would have had just as much time to prepare his testimony as Dr. Brinkley. Nothing about Dr. Brinkley's refusal of the request to serve as a defense witness raised any question as to the need for a psychiatrist or as to the merits of the mitigation argument. He simply advised counsel that he was unavailable because he had been hired by the prosecution. This should, if anything, have made it even more obvious that the defense needed a psychiatrist of its own.

FN2. Defense counsel considered seeking a continuance for unrelated reasons at one point during the trial, but the decision to obtain Dr. Brinkley's services (or those of some other psychiatrist) did not prompt them to consider one. Even had defense counsel believed that they would have been required to seek a continuance, this belief was not supported by any inquiry on their part. According to Schipp, defense counsel did not request him to contact any other psychiatrists to ask whether they could be ready in time. Mulligan also testified that his records indicated no further attempt to contact any psychiatrist after he learned that Dr. Brinkley was unavailable, although Dr. Maiuro testified that he probably recommended a few psychiatrists to defense counsel. Dr. Maiuro also stated that the defense did not contact him for additional referrals. The testimony shows that defense counsel abandoned their search for a psychiatrist after their first call to Dr. Brinkley failed, and that they did not inquire into whether another psychiatrist would be available or whether there would have been a need for a continuance. “[S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Strickland, 466 U.S. at 691, 104 S.Ct. 2052.

Although the evidence overwhelmingly shows that defense counsel's failure to hire a psychiatrist was not due to their desire to avoid a continuance, even if that had been their explanation, it would have been unreasonable. The majority argues that the defense wanted the jury to deliberate over the Christmas holiday and wanted to give the State less time for penalty phase preparation. Maj. Op. at 1034-35. As a preliminary matter, Cleven's testimony reveals that these were minor concerns at most. He testified that the Christmas holiday was “a silly point” and “not a major consideration for us.” He also admitted that “there was nothing remotely scientific” about the speculation that the jury might be more merciful over the Christmas holiday and there were no “focus groups or trial jurors or anything else” that supported any such thesis. If the Christmas holiday were a major consideration, which it was not, the defense's armchair juror psychology would not be entitled to deference because it was not the result of proper investigation. Additionally, Cleven testified that he did not think that giving the State more time to prepare was “much of a consideration.”

The majority also claims that defense counsel did not call another psychiatrist because they feared that he would render an unfavorable opinion and did not want to take the risk that they would be compelled to turn over a damaging report to the State. Maj. Op. at 1034-35. Not only is that argument unsupported by the record because no defense attorney testified that fear of an unfavorable report was the reason for their decision, but it is also nonsensical given that the lawyers actually attempted to hire Dr. Brinkley. The majority does not explain why counsel would try to hire Dr. Brinkley with no concern that he would render an unfavorable opinion, but, after he informed them that the State had hired him, would suddenly develop fears of a damaging diagnosis and elect not to contact another psychiatrist. Moreover, the record shows that defense counsel had a policy not to obtain a written report from their experts precisely in order to avoid such unwanted discovery and potential impeachment on cross-examination. That policy is a far more reasonable (and constitutional) way of handling the risk of potentially unfavorable written opinions from experts than simply avoiding experts altogether.

In short, the decision not to call a psychiatrist was not the result of reasoned strategic decisions, no matter how many illogical post-hoc rationalizations the State and the majority may advance. See Wiggins, 539 U.S. at 526-27, 123 S.Ct. 2527 (“The ‘strategic decision’ the state courts and respondents all invoke to justify counsel's limited pursuit of mitigating evidence resembles more a post-hoc rationalization of counsel's conduct than an accurate description of their deliberations prior to sentencing.”) Defense counsel's failure to call an expert in psychiatry was, as the Supreme Court once put it, “the result of in attention, not reasoned strategic judgment.” Id. at 534, 123 S.Ct. 2527. Consequently, I would hold that Brown's defense attorneys' performance was deficient in this respect.

I would also hold that Brown was prejudiced by his counsel's performance. The lack of expert testimony from a psychiatrist had a devastating impact on Brown's mitigation efforts at the penalty phase. In the defense's opening statement, Cleven told the jurors that Dr. Maiuro would explain to them how Brown's disorder was “not properly diagnosed or properly treated.” However, after the State's highly damaging cross-examination of Dr. Maiuro, and the testimony of Dr. Brinkley, in which he testified that Brown did not have a mental disorder that required lithium treatment, and without an expert psychiatrist of his own, Mulligan had no choice but to concede in his closing argument that the defense had not shown that Brown should have been treated with lithium, the only treatment it had suggested.

Moreover, during his closing argument, the prosecutor was able to undermine Dr. Maiuro's testimony by arguing:

Dr. Maiuro really didn't have enough information to be able to talk about whether the defendant should or should not have been on lithium ... Dr. Maiuro is not a medical doctor, so he does not prescribe lithium to people. He does not have to make the medical analysis of whether lithium is appropriate. That's not part of his role as a psychologist. So he was kind of out on a limb in that part of his testimony. And I think you recognized that once you heard from Dr. Brinkley.

Dr. Scher's testimony at the evidentiary hearing in the habeas proceeding demonstrates how helpful a properly qualified psychiatrist would have been for the defense: such a witness would have corroborated Dr. Maiuro's testimony that Brown suffered from a serious mood disorder and rebutted Dr. Brinkley's conclusions regarding lithium. As to the first, Dr. Scher testified that based on her personal interview of Brown and review of his records, Brown suffered from bipolar disorder. She also testified that Schick and Dr. Maiuro's diagnoses of Brown as manic were consistent with her diagnosis. As to the second, Dr. Scher testified that if Brown had been taking lithium prior to the murder, it “would have controlled the degree of impulsivity and the amount of stimulation he had.” Dr. Scher testified that it was her opinion that if Brown had been on lithium and properly treated, he would have been “less likely” to have committed the murder.

Dr. Scher's testimony also could have been used to impeach Dr. Brinkley because she testified that psychiatrists are supposed to do a personal interview before making a diagnosis and noted that Dr. Brinkley had failed to do so. Dr. Scher also testified that Dr. Brinkley unreasonably dismissed the fact that prior treatment providers had diagnosed Brown as manic depressive. FN3

FN3. We need not belabor the point that the majority raises of whether Dr. Brinkley was more qualified than Dr. Scher because we have no way of knowing which psychiatrist defense counsel would have found. Maj. Op. at 1035. Even if Dr. Brinkley had a longer curriculum vitae than the defense's psychiatrist, the fact that the defense expert would have interviewed Brown would have more than made up for whatever credential deficit there may have been. The majority argues that defense testimony by an expert psychiatrist would not have significantly changed the mitigation case because Dr. Brinkley's testimony did not undermine the defense's central theory and did not directly contradict Dr. Mauiro's diagnosis. Maj. Op. at 1034. As explained above, however, this is simply not correct. Dr. Brinkley's unchallenged testimony cast doubt over the entire mental illness argument by undermining Dr. Mauiro's diagnosis and eliminating from consideration the lithium issue, which was the most tangible way for the jury to understand the magnitude of Brown's illness. Dr. Brinkley did not have to contradict Dr. Mauiro's diagnosis directly or challenge any of the testimony about Brown's family background: the doubts he raised about Brown's mental disorder and his undisputed testimony about lithium were enough to devastate the mitigation theory.

In this case, defense counsel's failure to call a psychiatrist left the jury with no opportunity to consider the role that medical treatment with lithium could have played in controlling Brown's behavior, nor did the jurors hear any contradiction of Dr. Brinkley's devastating testimony that Brown did not have any disorder that could be treated with lithium. There is a reasonable probability that, had the jury heard the testimony of a psychiatrist, like Dr. Scher, who would have testified that Brown did have a mental disorder and that lithium treatment would have made him less likely to commit the crime with which he was charged, at least one juror would have concluded that Brown's treatable disorder was a mitigating circumstance that warranted a life sentence rather than death under Washington law.

II. Failure to Call Schick Schick is an experienced professional counselor who is licensed to make psychological diagnoses and who observed and treated Brown at the Oregon state prison for over two years. Of all the potential witnesses who were available to the defense at the time of trial, she was the only one who had witnessed the impact of lithium treatment on Brown. Nevertheless, none of Brown's attorneys-only an investigator-interviewed Schick and Schick was never asked to testify at the penalty phase.

At the evidentiary hearing, Schick testified that she had initially diagnosed Brown with bipolar disorder, but upon further observation revised her diagnosis to unipolar disorder because Brown did not appear to experience the severe depressive episodes that are characteristic of bipolar disorder. She requested a lithium trial to stabilize Brown's mood disorder and noticed an improvement in the month that she observed him on the drug. According to Schick, Brown “was able to focus longer and less likely to preoccupy himself with some of those grandiose thoughts.” In her declaration, Schick stated that she “believe[s] that this tragedy might have been averted if Brown's mental health treatment had been started sooner and his medication monitored more carefully.”

The majority claims that counsel made a reasoned decision not to call Schick because her qualifications were not as impressive as those of Dr. Maiuro, and because she, like Dr. Maiuro, could not prescribe lithium. Maj. Op. at 1035-36. Again, the majority's rationalizations for defense counsel's failings are not supported by the record. In fact, the failure to call Schick was a result of inattention, not strategy.

Lauren Sonik, a defense investigator, spoke with Schick a few months before trial began. None of Brown's attorneys, however, ever spoke with her. Mulligan did not remember making a “specific tactical decision not to call Ms. Schick as a witness at the penalty phase.” Cleven testified that he and his colleagues never “interviewed her closely as a potential witness” and could not “recall what considerations there were in deciding not to call her as a witness.” Hupp remembers “positive things” about Schick and remembers that she was exactly the sort of witness with the kind of information the defense was looking for. Hupp, like the others, did not remember why they did not call her. Thus, the majority's speculative explanation for defense counsel's failure to call Schick to testify has no basis in fact and is not supported by the record or the recollections of the attorneys.

Moreover, the majority's post-hoc rationalizations are unreasonable. First, the argument that Dr. Maiuro was better suited to testify because he has more degrees and professional accomplishments misses the point. Schick should have been called also, not because of her long curriculum vitae, but rather because of her unique experience with Brown. She was the only counselor who frequently observed and treated Brown over a period of time, observed his progress on lithium, and the only witness who could have projected the effect of further treatment. Thus, she was the best person to testify about Brown's responsiveness to medical treatment. Despite the fact that Schick's notes were read to the jury by Dr. Maiuro, the scant observations contained in them were no substitute for the detailed testimony that Schick could have given about her personal experience with Brown.

The majority's second explanation-that Schick was not a medical doctor and thus not qualified to prescribe lithium-is also contrary to reason and logic. First, that was clearly not counsel's actual reason for not calling Schick, given that it did not deter them from calling Dr. Maiuro. More important, however, Schick would not have been called to testify about whether Brown should have been prescribed lithium. As explained above, she would have been asked about the change in Brown's behavior once he began taking the drug. Her ability to prescribe medication has nothing to do with her ability to observe and evaluate a patient who is on medication.

Brown's counsel's failure to call Schick was not the result of a reasoned tactical decision; it was, rather, another failure properly to prepare the case for trial. Although Schick could have been a critical witness, no lawyer followed up on the investigation and interviewed her to determine how valuable her testimony might be. Thus, it would have been impossible for counsel to make an informed strategic decision not to call her. Counsel's representation fell below professional standards when they decided not to call Schick to testify at the penalty phase without interviewing her and without sufficient information to make an informed decision. Accordingly, I would hold that this decision also constituted deficient performance.

Schick's testimony would have corroborated Dr. Maiuro's testimony and directly rebutted Dr. Brinkley's claim that there was nothing in Brown's record that suggested he suffered from a mental disorder that could be treated with lithium. Unlike Dr. Maiuro or Dr. Brinkley, Schick could have provided first-hand testimony about the effect of lithium on Brown.

Because she did not testify, the jury heard about Schick only through the testimony of Dr. Maiuro and Dr. Brinkley.

Dr. Maiuro testified that, according to the prison records, Schick concluded that the treatment program resulted in “no change” in Brown. Dr. Brinkley also testified that Schick “said in her summary statement of [Brown's] course of treatment with her that she saw no change.”

The record reveals, however, that had the defense called her to testify, Schick would have told the jury that Brown improved on lithium. In her declaration, filed in the habeas proceeding, Schick stated that she had “noticed a marked improvement in Brown's symptoms” once his lithium treatment began in Oregon state prison. She noted that Brown's “internal energy was immediately decreased” and that he “was able to think and plan better.” Schick also declared that, had she been called to testify, she would have stated that it was her “firm professional belief that Brown had a major psychiatric disorder that was never effectively treated” and that “this tragedy might have been averted” if Brown's medication had been properly administered and monitored.

At the evidentiary hearing, Schick testified that during the month Brown was on lithium she observed “a gradual change” as Brown was “less likely to preoccupy himself with some of those grandiose thoughts.” She also testified that she saw some indication of the remission of Brown's symptoms after he was placed on the lithium trial. Thus, her testimony could have impeached Dr. Brinkley's conclusion that Schick had observed no change in Brown as a result of his lithium treatment.FN4 I would hold that, standing alone, counsel's failure to call Schick prejudiced Brown, or, at the very least, that he was prejudiced when that failure is considered in conjunction with counsel's failure to call a psychiatrist as an expert witness.

FN4. It appears that the basis for Dr. Maiuro and Dr. Brinkley's testimony that Schick did not notice any change in Brown on lithium was a single checked box on a case summary report dated June, 1993. This was three years after Schick stopped seeing Brown. According to the defense investigator's notes, Schick was leaving the prison at that time but before she left she had to go through all of her old files and close all of her cases. This is probably why she completed the report about Brown at such a late date. Although she did check the box that read “no change,” her notes in the report indicate that the lithium was working, which is consistent with Schick's declaration and testimony at the evidentiary hearing. Schick's testimony would have dispelled any doubts that might have been raised by the hastily checked “no change” box in the report. III. Failure to Cross-Examine Dr. Brinkley Brown's defense lawyers elected not to cross-examine Dr. Brinkley after he testified that Brown did not have a mental disorder for which lithium could be prescribed. As a result, the jury never heard that Dr. Brinkley made his evaluation and rendered his opinion without ever interviewing Brown, Brown's family, or any of the doctors and therapists who had treated him in the past. Moreover, the jury never heard that Dr. Brinkley's review of Brown's records was incomplete and that he had no knowledge of many aspects of Brown's background that are significant to diagnosing mood disorders.

The majority claims that Brown's attorneys made a tactical decision not to cross-examine Dr. Brinkley. Maj. Op. at 1036. That a decision can be labeled “tactical,” however, does not end the Strickland inquiry. Rather, “a reviewing court must consider the reasonableness of the investigation said to support that strategy.” Wiggins, 539 U.S. at 527, 123 S.Ct. 2527 (citing Strickland, 466 U.S. at 691, 104 S.Ct. 2052). Counsel performs inadequately at the penalty phase when he makes a tactical decision based upon inadequate investigation. See Wiggins, 539 U.S. at 536, 123 S.Ct. 2527. Here, there is no evidence that the decision not to cross-examine Dr. Brinkley was based on a reasonable investigation.

Cleven testified that he was prepared for the cross-examination and thought that it was important for the jury to hear concessions from Dr. Brinkley about the limited information upon which he based his testimony. During a break in the testimony, however, Mulligan, the lead attorney, ordered him not to conduct cross-examination. Cleven reported that Mulligan told him that “he had seen cross-examinations backfire” and that the points that Cleven wanted to get out in cross-examination could be made in the closing argument.

Mulligan admitted that he played no role in preparing to cross-examine Dr. Brinkley because the doctor was Cleven's witness, nor did he attend the short interview that the other two defense attorneys conducted with Dr. Brinkley on the morning of his testimony. Thus, Mulligan did not know in advance that Dr. Brinkley would testify that Brown did not have a disorder for which lithium should be prescribed and that Brown did not benefit from his lithium treatment at the Oregon state prison. If, like Cleven, Mulligan had played a role in preparing for cross-examination and if he, like Cleven, had been present at the interview with Dr. Brinkley, he likely would have come to the same conclusion as Cleven-that cross-examining Dr. Brinkley “would not pose any risk to [the case] at all” and indeed would likely result in answers that would “seriously call his testimony into question.” Additionally, Mulligan would have known that the points that Cleven wanted to make on cross-examination, namely that Dr. Brinkley made his assessment of Brown without interviewing him personally and on the basis of an incomplete review of Brown's record, could not be made during the closing argument without first establishing their factual basis by questioning Dr. Brinkley. Instead, Mulligan made an uninformed, on-the-spot decision and forbade Cleven from conducting the cross-examination that might have helped save Brown's life. As Cleven testified at the evidentiary hearing, the decision not to cross-examine Dr. Brinkley was not an informed one and it was not based on reasonable consideration of its merits and possible drawbacks. We need not defer to Mulligan's hasty decision because it was made without the benefit of adequate investigation and thus fell below prevailing professional standards. I would hold that the decision not to cross-examine Dr. Brinkley constituted deficient performance.

Dr. Brinkley's testimony was quite prejudicial to Brown's mitigation case. At trial, Dr. Brinkley testified that he did not see anything in the Oregon state prison records that explained why lithium was prescribed for Brown and that he “had no clear indication from the records [he] reviewed that [Brown] had a disorder for which lithium was appropriate.”

As a result of defense counsel's failure to cross-examine Dr. Brinkley, the prosecutor was able to argue in his closing argument that:

Apparently, the defense didn't dispute any of the findings of Dr. Brinkley. They never asked him questions. They apparently were satisfied with his expertise and his findings.

The habeas evidentiary hearing confirms that if Cleven had cross-examined Dr. Brinkley, the jury would have heard that Dr. Brinkley never conducted an interview with Brown and that he did not review all of the records about Brown's life history that Dr. Maiuro reviewed. In Dr. Brinkley's deposition, taken prior to the evidentiary hearing, Brown's counsel asked him about several pieces of information from Brown's family history that Dr. Brinkley did not review prior to testifying at trial. Dr. Brinkley acknowledged that some of the information from Brown's childhood that he did not review was “potentially relevant” to the diagnostic question of whether he suffered from a mood disorder. He stated that had he been aware that Brown's mother had a mood disorder, it would have been relevant to his diagnosis. He admitted that he did not know that Brown started seeing a psychiatrist at age seven, and that his evaluation would have been “more complete” if he had seen the records of the psychiatrist who treated Brown as a child. He also said he did not know that Brown had been diagnosed with cyclothymic disorder in 1982 and that it “would have been of interest” to him since cyclothymic disorder may precede bipolar disorder. Moreover, he testified that the behavioral patterns Schick observed in Brown at the state prison are “consistent” with a mood disorder. This testimony all demonstrates that cross-examination would have revealed to the jury that Dr. Brinkley's assessment was based upon an incomplete review of Brown's relevant mental health history and family background.

The majority claims that cross-examination of Dr. Brinkley would have backfired because he testified at the evidentiary hearing that Brown did not have manic syndrome, but instead was a sociopath. However, there is no suggestion that defense counsel intended to ask Dr. Brinkley for his diagnosis of Brown on cross-examination. Cleven planned to ask Dr. Brinkley whether he interviewed Brown and whether he reviewed all of the relevant records. Moreover, Dr. Brinkley's testimony on cross-examination would not have damaged Brown any more than his testimony on direct. On direct, he explained at length that lithium was used to treat mood disorders including bipolar disorder and manic symptoms. He then testified that Brown did not suffer from a disorder that could be treated with lithium. The conclusion that the jury naturally reached using elementary logic is that Dr. Brinkley believed that Brown did not have manic syndrome or any other mood disorder. Dr. Brinkley was an experienced witness. Had he wanted to say explicitly that Brown did not have any mood disorder or had he been willing to offer a different diagnosis, he surely would have done so on direct. There was no need to wait for cross or redirect.FN5

FN5. The majority also notes that at oral argument, counsel conceded that had Dr. Brinkley testified as he did in his habeas deposition, it would have been unhelpful to Brown. Maj. Op. at 1036. However, there is no indication that defense counsel intended to ask the questions that would have elicited this unhelpful testimony. Cleven testified that he was prepared to ask Dr. Brinkley whether he interviewed Brown and whether he reviewed all of the relevant background materials before reaching his conclusions. He gave no indication that he would have asked Dr. Brinkley to render a complete diagnosis.

The majority also argues that had he been cross-examined, Dr. Brinkley would have revealed that defense counsel were challenging his authority to interview Brown. Maj. Op. 1036-37. First, this contradicts the majority's other claim that Dr. Brinkley would have said that he had no interest in interviewing Brown because Brown was a liar. Maj. Op. at 1036-37. The majority cannot have it both ways. Second, the record does not indicate that defense counsel refused to permit an interview with Brown. The defense objected to the State's attempt to have Dr. Brinkley observe Brown's demeanor in the courtroom, but it invited the State to make a motion allowing Dr. Brinkley to interview him. The State failed to do so.

It is more likely that the majority's other explanation for Dr. Brinkley's failure to interview Brown is accurate-that Dr. Brinkley did not think it was necessary because he thought that Brown was a liar. Maj. Op. 1036-37. This is a puzzling excuse for Dr. Brinkley to affirm given that he relied solely on the notes of other professionals who interviewed Brown. Perhaps he believed them to be better at detecting lies than he. Regardless, even if Dr. Brinkley denied the value of a personal interview, it does not mean that the jury's assessment of his testimony would not have been affected by learning that he did not interview Brown. Moreover, the evidentiary hearing revealed that cross-examination would have enabled the defense to elicit from Dr. Brinkley the concession that he thinks clinical psychologists are “competent to make psychiatric diagnoses” and that he has worked with Dr. Maiuro in the past and considers him to be “a competent practitioner.” This concession would have mitigated the damage done by the State's cross-examination of Dr. Maiuro in which the psychologist was forced to admit that he was not qualified to prescribe lithium and by the State's closing argument in which the prosecutor commented that Dr. Maiuro was “out on a limb.”

There is a reasonable probability that, had the jury heard that Dr. Brinkley never interviewed Brown, did not review the same records as did Dr. Maiuro, and believed that Dr. Maiuro was competent to render an opinion, at least one juror would have given far greater weight to the opinions of Dr. Maiuro with respect to the question whether Brown's mental disorder and the lack of lithium should be considered to constitute a mitigating factor.

IV. Cumulative Error The three aspects of counsel's deficient performance, viewed together, should undermine one's confidence in the outcome of the penalty phase. Multiple errors, even if harmless individually, may entitle a petitioner to habeas relief if their cumulative effect prejudiced the defendant. Mak v. Blodgett, 970 F.2d 614, 622 (9th Cir.1992), cert. denied, 507 U.S. 951, 113 S.Ct. 1363, 122 L.Ed.2d 742 (1993); see also United States v. Tucker, 716 F.2d 576, 595 (9th Cir.1983); Cooper v. Fitzharris, 586 F.2d 1325, 1333 (9th Cir.1978) (en banc) (holding that “prejudice may result from the cumulative impact of multiple deficiencies”).

Defense counsel's errors resulted in the failure adequately to present Brown's strongest mitigation argument. The failure to call a psychiatrist to testify about Brown's mental disorder and his need for lithium, the failure to call Schick to testify about her observations while treating Brown over a period of time, including her observations about Brown's responsiveness to lithium, and the failure to cross-examine Dr. Brinkley after his devastating testimony that Brown did not have a disorder for which lithium treatment was appropriate, likely led the jury to believe that Brown's mental disorder was not serious and, consequently, did not constitute a mitigating factor that warranted a life sentence. Had counsel for the defense performed competently, they could have presented a far stronger affirmative case for the existence of Brown's mental disorder and the effectiveness of lithium treatment, as well as undermined the State's expert witness's contrary opinions. Properly presented, evidence that Brown suffered from a mental disorder that contributed to the murder but that could have been treated with lithium, could have tended to establish a powerful mitigating factor. Instead, defense counsel failed to present an adequate case and counsel left themselves vulnerable to the damaging cross-examination of Dr. Maiuro, testimony of Dr. Brinkley, and closing argument by the State.

These are not errors that “had an isolated, trivial effect.” Strickland, 466 U.S. at 695-96, 104 S.Ct. 2052. Had the jury been able to place Brown's mental illness on the mitigating side of the scale, there is a “reasonable probability” that, at least one juror would have concluded that “the balance of aggravating and mitigating circumstances did not warrant death.” Id. at 695, 104 S.Ct. 2052. As the Supreme Court has held:

[A]lthough we suppose it is possible that a jury could have heard [ ] all [the mitigation evidence] and still have decided on the death penalty, that is not the test. It goes without saying that the undiscovered mitigating evidence, taken as a whole, might well have influenced the jury's appraisal of [the defendant's] culpability.

Rompilla v. Beard, 545 U.S. 374, 393, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) ( quoting Wiggins, 539 U.S. at 538, 123 S.Ct. 2527) (internal quotation marks omitted).

I would hold that defense counsel's three serious errors-failure to hire a defense expert psychiatrist, failure to call Schick to testify, and failure to cross-examine Dr. Brinkley-prejudiced Brown. He received ineffective assistance of counsel in violation of the Sixth Amendment and, as a result, the writ of habeas corpus should issue.

V. Conclusion

I respectfully dissent. I would grant the writ of habeas corpus and vacate Brown's death sentence.