State v. Gregory

¶ 1 Washington's death penalty laws have been declared unconstitutional not once, not twice, but three times. State v. Baker , 81 Wash.2d 281, 501 P.2d 284 (1972) ; State v. Green , 91 Wash.2d 431, 588 P.2d 1370 (1979) ; State v. Frampton , 95 Wash.2d 469, 627 P.2d 922 (1981).1 And today, we do so again. None of these prior decisions held that the death penalty is per se unconstitutional, nor do we.

*627The death penalty is invalid because it is imposed in an arbitrary and racially biased manner. While this particular case provides an opportunity to specifically address racial disproportionality, the underlying issues that underpin our holding are rooted in the arbitrary manner in which the death penalty is generally administered. As noted by appellant, the use of the death penalty is unequally applied-sometimes by where the crime took place, or the county of residence, or the available budgetary resources at any given point in time, or the race of the defendant. The death penalty, as administered in our state, fails to serve any legitimate penological goal; thus, it violates article I, section 14 of our state constitution.

I. FACTS AND PROCEDURAL HISTORY

A. Factual background

¶ 2 In 1996, Allen Eugene Gregory raped, robbed, and murdered G.H. in her home.2 In 1998, Gregory was investigated for a separate rape crime based on allegations by R.S. In connection with that investigation, the Tacoma Police Department obtained a search warrant for Gregory's vehicle. In the vehicle, police located a knife that was later determined to be consistent with the murder weapon used to kill G.H. Police also obtained Gregory's blood sample during the rape investigation and used that sample to connect him to the deoxyribonucleic acid (DNA) found at G.H.'s crime scene. State v. Gregory , 158 Wash.2d 759, 812, 147 P.3d 1201 (2006) ( Gregory I ), overruled on other grounds by State v. W.R. , 181 Wash.2d 757, 336 P.3d 1134 (2014). After matching Gregory's DNA to that found at G.H.'s murder scene, the State charged Gregory with aggravated first degree murder. Id. Gregory was also charged and convicted of three counts of first degree rape stemming from R.S.'s allegations.

B. Procedural history

¶ 3 In 2001, a jury convicted Gregory of aggravated first degree murder. Id. at 777, 812, 147 P.3d 1201. The same jury presided over the penalty phase of his trial. Id. at 812, 147 P.3d 1201. The jury concluded there were not sufficient mitigating circumstances to merit leniency and sentenced Gregory to death. Id. When Gregory appealed his murder conviction and death sentence, we consolidated our direct review of those issues with Gregory's appeal of his separate rape convictions. Id. at 777, 147 P.3d 1201. We reversed the rape convictions, affirmed the aggravated first degree murder conviction, and reversed the death sentence. Id. at 777-78, 147 P.3d 1201. We based our reversal of Gregory's death sentence on two grounds: (1) "the prosecutor engaged in misconduct during closing arguments in the penalty phase of the murder trial" and (2) "the rape convictions," which we reversed, "were relied upon in the penalty phase of the murder case." Id. at 777, 147 P.3d 1201. We remanded the case for resentencing. On remand, the trial court impaneled a new jury to preside over a second special sentencing proceeding. Again the jury determined there were not sufficient mitigating circumstances to merit leniency and sentenced Gregory to death. Gregory appealed his sentence, raising numerous issues. In addition to any appeal, our court is statutorily required to review all death sentences. RCW 10.95.130(1). Pursuant to statute, we consolidate the direct appeal and death sentence review. Id.

*628¶ 4 Following remand, the State also prepared for a new rape trial. The State conducted interviews with R.S., but the interviews revealed that she had lied at the first trial. The State moved to dismiss the rape charges because R.S.'s inconsistent statements "ma[d]e it impossible for the State to proceed forward on [count I and count II]" and, given her statements, "the State d[id] not believe there [was] any reasonable probability of proving the defendant is guilty of [count III]." Clerk's Papers at 519. The trial court dismissed the rape charges with prejudice.

II. ISSUES3

A. Whether Washington's death penalty is imposed in an arbitrary and racially biased manner.

B. Whether statutory proportionality review of death sentences alleviates the alleged constitutional defects of the death penalty.

C. Whether the court should reconsider arguments pertaining to the guilt phase of Gregory's trial.

III. ANALYSIS

A. Historical background of the death penalty in Washington

¶ 5 A brief history of the various death penalty schemes in Washington serves to illustrate the complex constitutional requirements for capital punishment. See also State v. Bartholomew , 98 Wash.2d 173, 180-92, 654 P.2d 1170 (1982) ( Bartholomew I ), vacated, 463 U.S. 1203, 103 S.Ct. 3530, 77 L.Ed.2d 1383 (1983) (similar historical discussion). In 1972, the United States Supreme Court nullified capital punishment laws in 39 states, including Washington, and the District of Columbia. Furman v. Georgia , 408 U.S. 238, 305, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) ; Baker, 81 Wash.2d at 282, 501 P.2d 284 ; State v. Lord , 117 Wash.2d 829, 908, 822 P.2d 177 (1991) (" Furman prohibits sentencing procedures which create a substantial risk that death will be imposed in an arbitrary and capricious manner. In other words, where the death penalty is imposed wantonly and freakishly, it is unconstitutional." (citation omitted) ). Three years later, by way of a ballot initiative, Washington enacted a new capital punishment law that required mandatory imposition of the death penalty for specified offenses. Initiative 316, LAWS OF 1975 2d Ex. Sess., ch. 9, repealed by LAWS OF 1981, ch. 138, § 24. But this, too, proved problematic. In 1976, the United States Supreme Court held that mandatory imposition of death sentences for specified homicides is unconstitutional. Woodson v. North Carolina , 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) (plurality opinion); Roberts v. Louisiana , 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). Consequently, we declared our capital punishment law unconstitutional. Green, 91 Wash.2d at 447, 588 P.2d 1370. In contrast, Georgia's capital punishment law was upheld. Gregg v. Georgia , 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (plurality opinion). To be constitutionally valid, "where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action." Id. at 189, 96 S.Ct. 2909.

¶ 6 Our legislature enacted a new capital punishment law, allowing for the imposition of the death penalty where the jury, in a subsequent sentencing proceeding, found an aggravating circumstance, no mitigating factors sufficient to merit leniency, guilt with clear certainty, and a probability of future criminal acts. LAWS OF 1977, 1st Ex. Sess., ch. 206 (codified in chapter 9A.32 RCW and former chapter 10.94 RCW, repealed by LAWS OF 1981, ch. 138, § 24). The statute was found unconstitutional because it allowed imposition of the death penalty for those who pleaded not guilty but did not impose the death penalty when there was a guilty plea. Frampton, 95 Wash.2d at 480, 627 P.2d 922. The legislature again refined our capital punishment law in an attempt to conform to various legal directives. Ch. 10.95 RCW. Our current statute *629is nearly identical to the Georgia statute. State v. Harris , 106 Wash.2d 784, 798, 725 P.2d 975 (1986) ("The language in our statute is identical to that used in the Georgia statute."); cf. Bartholomew I, 98 Wash.2d at 188, 654 P.2d 1170 ("The statutory aggravating circumstances are similar but not identical to those of the approved Georgia statute.").

¶ 7 Chapter 10.95 RCW provides for a bifurcated proceeding-first the defendant is found guilty of aggravated first degree murder, and then a special sentencing proceeding is held before either a judge or a jury to determine whether there are sufficient mitigating circumstances to merit leniency. RCW 10.95.050, .060. If there are, the defendant shall be sentenced to life without parole. RCW 10.95.080. If the defendant is sentenced to death, the sentence is automatically reviewed by this court, in addition to any appeal the defendant seeks. RCW 10.95.100. Our statutorily mandated death sentence review proceeding requires this court to determine (a) whether there was sufficient evidence to justify the judge's or jury's finding in the special sentencing proceeding, (b) whether the death sentence is excessive or disproportionate to the penalty imposed in similar cases, considering the crime and the defendant, (c) whether the death sentence was brought about through passion or prejudice, and (d) whether the defendant had an intellectual disability. RCW 10.95.130(2).

¶ 8 Proportionality review "serves as an additional safeguard against arbitrary or capricious sentencing." State v. Pirtle , 127 Wash.2d 628, 685, 904 P.2d 245 (1995) ; Harris, 106 Wash.2d at 797, 725 P.2d 975. The goal is "to ensure that the death penalty's imposition is not 'freakish, wanton, or random[ ] and is not based on race or other suspect classifications.' " State v. Davis , 175 Wash.2d 287, 348, 290 P.3d 43 (2012) (alteration in original) (quoting State v. Cross , 156 Wash.2d 580, 630, 132 P.3d 80 (2006) ). The United States Supreme Court held that statutory proportionality review is not required by the federal constitution, Pulley v. Harris , 465 U.S. 37, 43-44, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984), but the impetus for it nonetheless derives from constitutional principles. Lord, 117 Wash.2d at 908, 822 P.2d 177 (proportionality review "was undertaken in Washington in response to the United States Supreme Court decision in Furman ").

B. Gregory ' s constitutional challenge to the death penalty is intertwined with our statutorily mandated proportionality review

¶ 9 Gregory challenged the constitutionality of the death penalty, supported with numerous reasons. He also presented a statutory argument, that his death sentence is excessive and disproportionate to the penalty imposed in similar cases. RCW 10.95.130(2)(b). Gregory claimed that his death sentence "is random and arbitrary, and, to the extent it is not, it is impermissibly based on his race and the county of conviction." Opening Br. of Appellant at 96 (underlining omitted). These assertions are precisely what proportionality review is designed to avoid. See State v. Brown , 132 Wash.2d 529, 554-55, 940 P.2d 546 (1997) ("In conducting proportionality review the court is principally concerned with avoiding two systemic problems ...: random arbitrariness and imposition of the death sentence in a racially discriminatory manner.").

¶ 10 In Davis, our court grappled with proportionality review of the defendant's death sentence. "How to properly perform proportionality review, and upon what data, is a reoccurring, vexing problem in capital case jurisprudence across the nation." Cross, 156 Wash.2d at 636, 132 P.3d 80. The majority and dissenting opinions took different approaches disputing which factors were relevant and to what degree statistical evidence could be relied on. The majority saw "no evidence that racial discrimination pervades the imposition of capital punishment in Washington." Davis, 175 Wash.2d at 372, 290 P.3d 43. But the dissent believed that "[o]ne could better predict whether the death penalty will be imposed on Washington's most brutal murderers by flipping a coin than by evaluating the crime and the defendant. Our system of imposing the death penalty defies rationality, and our proportionality review has become an 'empty ritual.' " Id. (Fairhurst, J., dissenting) (quoting State v. Benn, 120 Wash.2d 631, 709, 845 P.2d 289 (1993)

*630(Utter, J., dissenting) ). "We can, and must, evaluate the system as a whole." Id. at 388, 290 P.3d 43. Justice Wiggins specifically called on competent experts to present evidence on the "statistical significance of the racial patterns that emerge from the aggravated-murder trial reports." Id. at 401, 290 P.3d 43 (Wiggins, J., concurring in dissent).

¶ 11 In light of Davis, Gregory commissioned a study on the effect of race and county on the imposition of the death penalty. Opening Br. of Appellant, App. A ( KATHERINE BECKETT & HEATHER EVANS, THE ROLE OF RACE IN WASHINGTON STATE CAPITAL SENTENCING , 1981-2012 (Jan. 27, 2014) [https://perma.cc/XPS27YTR] ).4 Subsequently, additional trial reports were filed. Beckett performed a new regression analysis and updated her report. KATHERINE BECKETT & HEATHER EVANS, THE ROLE OF RACE IN WASHINGTON STATE CAPITAL SENTENCING , 1981-2014 (Oct. 13, 2014) (Updated Beckett Report) [https://perma.cc/3THJ-989W]. The Updated Beckett Report supported three main conclusions: (1) there is significant county-by-county variation in decisions to seek or impose the death penalty, and a portion of that variation is a function of the size of the black population but does not stem from differences in population density, political orientation, or fiscal capacity of the county, (2) case characteristics as documented in the trial reports explain a small portion of variance in decisions to seek or impose the death penalty, and (3) black defendants were four and a half times more likely to be sentenced to death than similarly situated white defendants. Id. at 31-33. Gregory filed a motion to admit the Updated Beckett Report, which we granted.

¶ 12 The State raised many concerns about the reliance on Beckett's statistical analysis, arguing that this was an inappropriate forum for litigating facts and adducing evidence. The State was also concerned because Beckett had not been subject to cross-examination about her involvement with Gregory's counsel, her statistical methodology, and her overall reliability. The State requested an opportunity to challenge the Updated Beckett Report. We granted the request and ordered that a hearing be held before then Supreme Court Commissioner Narda Pierce. No actual hearing was held since the parties agreed on the procedures and Commissioner Pierce was able to solicit additional information through interrogatories. The State filed the report of its expert, and Gregory filed Beckett's response. NICHOLAS SCURICH, EVALUATION OF "THE ROLE OF RACE IN WASHINGTON STATE CAPITAL SENTENCING , 1981-2014" (July 7, 2016); KATHERINE BECKETT & HEATHER EVANS, RESPONSE TO EVALUATION OF "THE ROLE OF RACE IN WASHINGTON STATE CAPITAL SENTENCING , 1981-2014" BY NICHOLAS SCURICH (Aug. 25, 2016). Commissioner Pierce reviewed these filings and then posed follow-up questions in interrogatory form. After receiving answers, Commissioner Pierce filed her report. FINDINGS AND REPORT RELATING TO PARTIES' EXPERT REPORTS (Nov. 21, 2017) (Commissioner's Report). The Commissioner's Report did not make legal conclusions or recommend how this court should weigh the evidence before us. Rather, the Commissioner's Report provided us with an overview of the disagreements between the experts and the overall strength and weakness of Beckett's analysis, which may impact the weight that we accord to her conclusions. The parties (and amici) filed supplemental briefing that shed further light on the issues raised in the Commissioner's Report and the overall assessment of Beckett's analysis. In turn, the Updated Beckett Report and the subsequent rigorous evidentiary process provided this court with far more system-wide information concerning the death penalty, enabling Gregory to use that information to substantiate his constitutional challenge as well. In his supplemental brief, Gregory incorporates the analysis and conclusions from the Updated Beckett Report to support his constitutional claim, arguing that the death penalty is imposed in an arbitrary and racially biased manner.

¶ 13 Given the intertwined nature of Gregory's claims, we have discretion to resolve them on statutory grounds, by solely determining if his death sentence fails the statutorily mandated death sentence review and must be converted to life without parole, *631or on constitutional grounds, by assessing our state's death penalty scheme as a whole. "Where an issue may be resolved on statutory grounds, the court will avoid deciding the issue on constitutional grounds." Tunstall v. Bergeson , 141 Wash.2d 201, 210, 5 P.3d 691 (2000). Because Gregory challenges the process by which the death penalty is imposed, the issue cannot be adequately resolved on statutory grounds. Proportionality review is a statutory task that this court must perform on the specific death sentence before us, but it is not a substitute for the protections afforded to all persons under our constitution.

C. Washington's death penalty scheme is unconstitutional, as administered

1. Standard of review

¶ 14 We review constitutional claims de novo. However, conducting a constitutional analysis in death penalty cases is slightly different from our traditional constitutional review. "The death penalty differs qualitatively from all other punishments, and therefore requires a correspondingly high level of reliability." Pirtle, 127 Wash.2d at 663, 904 P.2d 245 ; see also Lord, 117 Wash.2d at 888, 822 P.2d 177 (The death penalty is "subjected to a correspondingly higher degree of scrutiny than sentencing in noncapital cases.").

¶ 15 Gregory brought challenges under both the state and federal constitutions. We have " 'a duty, where feasible, to resolve constitutional questions first under the provisions of our own state constitution before turning to federal law.' " Collier v. City of Tacoma , 121 Wash.2d 737, 745, 854 P.2d 1046 (1993) (quoting O'Day v. King County, 109 Wash.2d 796, 801-02, 749 P.2d 142 (1988) ); accord State v. Jorgenson , 179 Wash.2d 145, 152, 312 P.3d 960 (2013) ("Where feasible, we resolve constitutional questions first under our own state constitution before turning to federal law."). If we neglect this duty, we "deprive[ ] the people of their 'double security.' " Alderwood Assocs. v. Wash. Envtl. Council, 96 Wash.2d 230, 238, 635 P.2d 108 (1981) (quoting THE FEDERALIST NO. 51, at 339 (A. Hamilton or J. Madison) (Modem Library ed. 1937) ). "It is by now well established that state courts have the power to interpret their state constitutional provisions as more protective of individual rights than the parallel provisions of the United States Constitution." State v. Simpson , 95 Wash.2d 170, 177, 622 P.2d 1199 (1980) (plurality opinion).

¶ 16 Article I, section 14 of our state constitution provides, "Excessive bail shall not be required, excessive fines imposed, nor cruel punishment inflicted." Our interpretation of article I, section 14 "is not constrained by the Supreme Court's interpretation of the [Eighth Amendment]." State v. Bartholomew, 101 Wash.2d 631, 639, 683 P.2d 1079 (1984) ( Bartholomew II ); U.S. CONST. amend. VIII. This court has "repeatedly] recogni[zed] that the Washington State Constitution's cruel punishment clause often provides greater protection than the Eighth Amendment." State v. Roberts , 142 Wash.2d 471, 506, 14 P.3d 713 (2000) ; State v. Ramos , 187 Wash.2d 420, 453-54, 387 P.3d 650 (quoting same passage), cert. denied , --- U.S. ----, 138 S. Ct. 467, 199 L.Ed.2d 355 (2017).

Especially where the language of our constitution is different from the analogous federal provision, we are not bound to assume the framers intended an identical interpretation. The historical evidence reveals that the framers of [the Washington Constitution, article I, section 14 ] were of the view that the word "cruel" sufficiently expressed their intent, and refused to adopt an amendment inserting the word "unusual."

State v. Fain , 94 Wash.2d 387, 393, 617 P.2d 720 (1980). A formal Gunwall5 analysis is not necessary when we apply established principles of state constitutional jurisprudence. Roberts, 142 Wash.2d at 506 n.11, 14 P.3d 713.6

*632¶ 17 For example, in Bartholomew II, we adhered to our decision invalidating portions of our capital punishment law on independent state constitutional grounds rather than conforming our analysis to a recent United States Supreme Court case affirming the death penalty against an Eighth Amendment challenge. 101 Wash.2d at 634,