Supreme Court of Washington, En Banc.
Washington STATE, Applicant, v. Joseph T. McENROE, Defendant.
State of Washington, Applicant, v. Michele Kristen Anderson, Defendant.
Nºs 88410–2, 88411–1.
Decided: September 5, 2013
Suing Atty King County, King Co Pros./App. Unit Supervisor, Andrea Ruth Vitalich, James Morrissey Whisman, Scott Michael O'Toole, Attorney, King County Prosecutor's Office, Seattle, WA, for the Claimant. Kathryn Lund Ross, WA State Death Penalty Assistance Center, Leo J. Hamaji, Attorney, William J. Prestia, The Defender Association, Colleen E. O'Connor, Society of Counsel, David P. Sorenson, SCRAP, Seattle, WA , to Defendant. Pamela Beth Loginsky, Washington Assoc. of Prosecuting Atty., Olympia, WA, to Amicus Curiae on behalf of the Washington Association of Prosecuting Attorneys.
¶ 1 In this direct review of the trial court's rejection of notices of capital punishment special proceedings, the King County prosecutor asks us to decide whether he violated Washington's capital punishment statutes, considering the strength of the evidence against the defendants Joseph McEnroe and Michele Anderson when he decided to seek the death penalty for the shooting deaths of six people. We understand that the prosecuting attorney did not violate the legal framework.
¶ 2 RCW 10.95.040(1) directs the prosecutor to “give written notice of a special sentencing process to determine whether or not the death penalty should be imposed when there is reason to believe that there are not sufficient extenuating circumstances to merit clemency. ” The prosecutor in this case complied with the statute in question in considering the mitigating circumstances and determining that there was reason to believe that the mitigating circumstances were not sufficient to merit leniency. The fact that the prosecutor also considered the strength of his case in making that determination is unimportant. Therefore, we have reversed the court's judgment and returned with instructions to reinstate the special sentencing process notices so that the cases against McEnroe and Anderson can proceed to trial.
¶ 3 As we resolved this case by interpreting RCW 10.95.040, we declined to address the sensitive constitutional issue of separation of powers raised by the parties. Cmty. Telecable of Seattle, Inc. v. City of Seattle, 164 Wn.2d 35, 41, 186 P.3d 1032 (2008) (“We will avoid deciding constitutional issues where a case may be fairly resolved on other grounds.”).
FACTS AND PROCEDURE HISTORY
I. Factual background
¶ 4 In Carnation, Washington, on December 24, 2007, six members of the Anderson family were shot dead in their home: the parents of accused Michele Anderson, Judy and Wayne Anderson; Defendant Anderson's brother, Scott, and sister-in-law, Erika Anderson; and the defendant's five-year-old niece, Olivia Anderson, and three-year-old nephew, Nathan Anderson. All victims were shot at least once, and Judy, Scott, Erika, and Olivia were shot multiple times in the head and body.
¶ 5 A friend of Judy Anderson discovered this horrific scene two days later, after Judy failed to show up for work or respond to phone calls. The police responded quickly. During the investigation, McEnroe and Anderson arrived at the scene. McEnroe and Anderson initially told police that they had gone to Las Vegas to get married on December 24, but, after police questioning, they changed their story and confessed to the murders.
¶ 6 On December 28, 2007, the State charged Anderson and McEnroe with six counts of aggravated first-degree murder. Under RCW 10.95.040, if the prosecutor concluded that there were not sufficient mitigating factors to merit clemency, he must file a special sentencing process notice to consider the death penalty within 30 days of charging Anderson and McEnroe. The lower court granted a motion to extend that deadline. In January 2008, the prosecutor wrote to defense counsel to extend the deadline for consideration of mitigating circumstances and asking the defense to submit mitigating materials by April 10, 2008. After further extensions, in October 2008, the prosecutor filed a notice of sentencing special process to determine whether he would seek the death penalty. At the same time, he released a statement in which he indicated that he was obliged to consider mitigating evidence, but that “[g]iven the magnitude of these alleged crimes, the murder of three generations of a family and, in particular, the murder of two young children , [he] felt that there were not [there] sufficient grounds to prevent the death penalty from being considered by the [jurors who] would eventually hear these matters.” Clerk's papers (CP) in 48.
II. preliminary procedures
¶ 7 Following the prosecutor's notices of the special sentencing process, defense counsel began seeking information that would form the basis of the prosecutor's decision-making in this case and in other capital cases. Defense counsel filed numerous motions under various theories to investigate the prosecutor's reasons for seeking the death penalty. This hotly contested issue culminated in the defendants' November 2012 motion to reject notices of special sentencing process, arguing that the prosecutor's consideration of the strength of the evidence against McEnroe and Anderson violated their rights to equal protection of the law and due process. .
¶ 8 In January 2013, the lower court granted the defendants' motion and overturned the special sentencing process notices on two grounds. First, the lower court found that the prosecutor violated RCW 10.95.040 in considering the strength of the evidence against McEnroe and Anderson in deciding to file special sentencing process notices. The lower court argued that the prosecutor could only consider the circumstances of the case and mitigating information, but could not consider the strength of the state's case. Second, the lower court ruled that, in considering the strength of the evidence, the prosecutor violated the equal protections of the law by “seeking varying degrees of punishment by proving identical criminal elements”. CP at 605. The lower court based its equal protection decision on hypothetical defendants whose crimes and mitigating circumstances were identical, but against only one of whom the State had strong evidence. As the strength of the cases against these hypothetically identical defendants would be the only reason why one would face the possibility of the death penalty and the other not, the lower court concluded that considering the strength of the evidence violated equal protection. See id. at 609 ("In a scenario suggestive of Camus, a defendant's early confession and cooperation may become his undoing.").
III. Discretionary and direct review
¶ 9 The State promptly sought discretionary review of the lower court's decision that canceled notices of the special judgment process. The State also requested expedited review and consolidation of the cases against each defendant. The Court of Appeals certified cases for transfer to this court in accordance with RCW 2.06.030(d)1and PAR 4.4.2We consolidate cases and grant discretionary review.3
¶ 10 We consider that prosecutors may consider the strength of their cases when determining whether to file a notice of special sentencing proceedings seeking the death penalty pursuant to RCW 10.95.040. The statute does not prohibit consideration of the force of the State's case, and as long as prosecutors consider whether there are sufficient extenuating circumstances to merit leniency, they fully discharge their statutory duties. We encourage holistic and individualized prosecutorial assessments to determine whether capital punishment is appropriate to fulfill guarantees of equal protection and promote sound public policy. Accordingly, we have reversed the judgment and returned this lawsuit with instructions to reinstate the special conviction process notices.
I. RCW 10.95.040 requires the prosecutor to determine only whether the extenuating circumstances are insufficient to merit leniency
¶ 11 Our “'fundamental object in the interpretation of a law is to determine and carry out the intention of the legislator'.” State v. Veliz, 176 Wn.2d 849, 854, 298 P.3d 75 (2013) (citing State v. Morales, 173 Wn.2d 560, 567, 269 P.3d 263 (2012)). “'We interpret the meaning of a statute by reading it in its entirety and considering the entire sequence of all statutes relating to the same subject.'” Id.
¶ 12 RCW 10.95.040(1) fornece:
If a person is charged with first-degree murder, as defined by RCW 10.95.020, the prosecuting attorney must submit written notice of a special sentencing process to determine whether or not the death penalty should be imposed when there is reason to to believe that there are insufficient extenuating circumstances to justify leniency.
This statute requires the prosecutor to make only one determination: whether "there is reason to believe that there are not sufficient extenuating circumstances to merit leniency." I went. If the prosecutor believes that the mitigating circumstances are insufficient, he must file a written notice of special sentencing proceedings.
¶ 13 RCW 10.95.040(1) does not define “extenuating circumstances” or provide any guidance on when extenuating circumstances are sufficient to merit leniency. But reading the legal regime as a whole, we consider other provisions in chapter 10.95 RCW, which also employ the term “extenuating circumstances” in relation to what the jury may consider in a special sentencing proceeding. RCW 10.95.060(4) requires a jury considering the death penalty to answer the question: “'Bearing in mind the crime of which the defendant was found guilty, are you satisfied beyond a reasonable doubt that there are no circumstances sufficient mitigating circumstances for clemency on the merits?'” RCW 10.95.070 details that, in answering this question, “the jury, or the court if a jury is waived, may consider any relevant factors” in addition to the eight enumerated factors contained in the RCW 10.95.070.4If the judge of the fact “finds that there are not enough extenuating circumstances to deserve clemency, the sentence will be death”. RCW 10.95.030(2). Accordingly, we interpret the term “extenuating circumstances” in Chapter 10.95 RCW to mean the factors listed in RCW 10.95.070, as well as any relevant factors.
¶ 14 We can also refer to the dictionary definition of “mitigate”. State v. Kintz, 169 Wn.2d 537, 547, 238 P.3d 470 (2010). The dictionary defines the verb “mitigate” as “make less severe, violent, cruel, intense, painful”. Webster's Third New International Dictionary 1447 (2002). Thus, a mitigating circumstance is a circumstance that requires a less serious outcome. In the context of capital punishment, it is reasonable to believe that the legislature intended “extenuating circumstances” to include the eight factors listed in RCW 10.95.070 and any other relevant factor, i.e., those circumstances that call for a punishment less severe than death.
II. The prosecutor fulfilled his statutory duty in determining whether the extenuating circumstances were sufficient to merit clemency
¶ 15 When deciding to seek the death penalty against McEnroe and Anderson, the prosecutor considered the mitigating information and determined that there were not sufficient mitigating circumstances to merit leniency. After making that determination, he filed special sentencing process notices as the statute required. Consequently, we consider that the promoter has fulfilled its duties under RCW 10.95.040.
¶ 16 The prosecutor made clear statements about his consideration of extenuating circumstances. In the press release announcing his plans to seek capital punishment, the prosecutor acknowledged that he "has an obligation in potential capital murder cases to consider all relevant information about the crime and weigh it against any mitigating evidence that favors the accused defendants." . CP at 48. In carrying out this balancing exercise, the prosecutor did exactly as instructed by the statute: he found “that there were not [there] sufficient reasons to prevent the death penalty from being considered” by the jury. I went. Furthermore, in response to defense counsel's request for clarification of the information the prosecutor considered, the prosecutor indicated that it "considered the alleged facts and circumstances that formed the basis for the indictment" of the defendants and also "considered the mitigation materials presented by the defense council." I was. at 52. So we conclude that the prosecutor did what the law required: he considered whether the extenuating circumstances were sufficient to merit clemency.
III. Prosecutors may consider the strength of the evidence when determining whether to file a notice of special sentencing proceedings
¶ 17 In addition to considering the reasons to believe that the extenuating circumstances are not sufficient to merit leniency, RCW 10.95.040(1) neither requires nor precludes consideration of any other information. Logically speaking, when determining the sufficiency of mitigating circumstances, prosecutors must realistically consider other factors that weigh against mitigation. Nothing in the statutory language suggests that the strength of the evidence cannot be one of these other factors. Indeed, in many respects it makes sense for prosecutors to reflect on the strength of their cases before deciding to pursue ultimate punishment.
¶ 18 We recognize the importance of the strength of the evidence in the Public Ministry's decision to seek the death penalty first. Recently, in State v. Davis, we note: “Mitigating evidence is not the only reason a prosecutor might decide not to seek the death penalty. The strength of the state's case often influences that decision." 175 Wn.2d 287, 357, 290 P.3d 43 (2012) (emphasis added). Less recently, "we assume[d] that prosecutors exercise their discretion in a manner [that] reflects their judgment on the seriousness of the crime or insufficient evidence." State v. Rupe, 101 Wn.2d 664, 700, 683 P.2d 571 (1984) (emphasis added). Davis and Rupe demonstrate that while we have never clearly decided whether prosecutors can weigh the strength of the evidence against mitigating circumstances when deciding to file a notice of special sentencing process, we certainly assume that they can.
¶ 19 Defendants assert that RCW 10.95.040 requires prosecutors to consider only extenuating circumstances when determining whether to apply the death penalty. The lower court also indicated that the prosecutor should not weigh the strength of the State's case against the mitigating circumstances because the mitigation is focused exclusively on the defendant's moral culpability. Essentially, these arguments boil down to a requirement that prosecutors consider mitigating circumstances in a vacuum. Such a requirement is illogical for several reasons.
¶ 20 First, as discussed, RCW 10.95.040(1) contains no prohibition on what the prosecutor may consider in making its determination to file a notice of special sentencing proceedings. The only legal requirement is that the prosecutor withhold the notice when extenuating circumstances are not sufficient to warrant leniency. The trial court and the defendants point to no textual prohibition against considering the strength of the evidence when deciding whether to seek the death penalty.5
¶ 21 Second, the lower court has ruled and the defendants concede that prosecutors may consider the facts and circumstances of the case together with mitigating evidence. This concession contradicts the defendants' theory that the statute requires that only mitigating evidence be considered. After all, RCW 10.95.040(1) does not provide any textual authority for the consideration of facts and circumstances or the strength of the evidence. Furthermore, the strength of a particular case may well be a fact or circumstance of the case. In short, if prosecutors can consider the facts and circumstances of the case, it would be anomalous to prevent them from considering the strength of their evidence.
¶ 22 Third, as the State argues, the determination of whether or not to seek the death penalty must require that an elected prosecutor “informs himself — or informs himself as fully and completely as possible”. Opening Br. from Pet'r at 34. We agree. Prosecutors, in the exercise of their executive functions, best serve the public by holistically considering all the facts and circumstances relating to the crime, which realistically include the strength of the evidence, rather than by forcing a narrow view. Given the time and expense required to prepare and try a capital case, it makes sense that a prosecutor would only seek the death penalty when he believes there is a good chance of securing a conviction.
¶ 23 We believe that Washington prosecutors may consider the strength of the evidence, along with the facts and circumstances of the crime, when determining whether there are sufficient extenuating circumstances to merit leniency.
4. RCW 10.95.040 does not grant unrestricted discretion to prosecutors or violate principles of equal protection
¶ 24 Since the inception of Washington's current capital sentencing scheme, we have maintained the constitutionality of the statutes despite the equal protection challenges they provide to plaintiff attorneys. Today we reaffirm our case law that prosecutors who make individual assessments when deciding whether to seek the death penalty do not violate these constitutional principles.
¶ 25 The first challenge of “unrestricted discretion” came in State v. Campbell, 103 Wn.2d 1, 24, 691 P.2d 929 (1984). There we note that "equal protection of the laws is denied when a prosecutor may seek varying degrees of punishment by proving identical criminal elements." I went. at 25. But “'there is no constitutional defect when the crimes [which] the prosecutor has discretion to prosecute have different elements.'” Id. (citing State v. Wanrow, 91 Wn.2d 301, 312, 588 P.2d 1320 (1978)). Because prosecutors must consider extenuating circumstances and because only in the absence or insufficiency of such circumstances can prosecutors ask for death, we found RCW 10.95.040(1) to be constitutional. Campbell, 103 Wn.2d at 25.
¶ 26 We have since expanded on Campbell's analysis, requiring prosecutors to “undertake individualized weighting of mitigating factors” and noting that “an inflexible policy is not permissible”. State v. Pirtle, 127 Wn.2d 628, 642, 904 P.2d 245 (1995); see also In re. pers. Restraint of Harris, 111 Wn.2d 691, 693, 763 P.2d 823 (1988). Thus, for a prosecutor to constitutionally exercise discretion in deciding to file notices of special conviction proceedings, the prosecutor must engage in an individualized weighing of mitigating factors. As individualized weighting allows prosecuting attorneys to reach a decision tailored to the unique circumstances of each case, there is no discretion without standard and therefore no breach of equal protection. See, for example, State v. Cross, 156 Wn.2d 580, 625, 132 P.3d 80 (2006); State v. Benn, 120 Wn.2d 631, 671, 845 P.2d 289 (1993); State v. Bartholomew, 104 Wn.2d 844, 848–49, 710 P.2d 196 (1985); Rupe, 101 Wn.2d at 700.
¶ 27 In rejecting notices of the special sentencing process on the grounds of equal protection, the trial court did not engage in the above analysis based on our jurisprudence, but instead established the following assumption:
Consider two defendants who separately commit identical crimes in King County, Washington. The first defendant commits his offense in a jurisdiction that has ample resources and an excellent investigative unit. As a result, the evidence in this case is substantial and the case against this defendant is solid on the merits. The second defendant, however, commits his crime in a jurisdiction that has fewer resources and an undertrained and overworked police force. The evidence in this case is comparatively thin, and the case against this defendant is weak on the merits. Both defendants are later charged with first-degree murder. Both defendants present identical evidence of mitigation to the prosecutor. The prosecutor refuses to file the notice of intent for the second defendant, but files the notice for the first. The difference in outcome has nothing to do with the individual moral culpability of the respective defendants, but depends on the wholly unrelated factor of the strength of evidence in the State's case as to guilt. In this hypothesis, the insufficiency of the mitigating evidence was clearly not the consideration guiding the prosecutor's discretion ․
CP at 622. This hypothetical unrealistically assumes that there are two identical crimes and two identical defendants and therefore rules out the possibility of an individualized assessment, asking us to assume that everything is equal except on the strength of the available evidence. Thus, the hypothetical does not illustrate a realistic equal protection violation, but it demonstrates exactly why we demand individualized determinations from our prosecuting attorneys. In reality, prosecutors must make individual assessments looking at the crime, the mitigation package, the strength of the evidence, the wishes of the surviving family members, and many other factors that govern the final decision to pursue capital punishment. Only by engaging in such a multifaceted and individualized consideration can prosecuting attorneys fulfill the equal protection clause.
¶ 28 The King County Prosecutor followed statutory requirements when considering whether extenuating circumstances merited leniency and when it determined that they did not. The fact that he also considered the strength of the case is irrelevant. Indeed, holistic assessments that take into account various extenuating circumstances, the facts of the case and the strength of the evidence are exactly the kind of individualized determinations we require of our prosecutors. Without flexible weighing of various factors, prosecutors would likely make non-standard decisions that violate principles of equal protection. For these reasons, we have reversed the court's judgment and returned this matter with instructions to reinstate the special sentencing process notices so that the capital proceedings against McEnroe and Anderson can finally proceed to trial.
1.RCW 2.06.030 provides in relevant part that the Court of Appeals “shall have exclusive appellate jurisdiction in all cases except: ․ (d) cases involving fundamental and urgent matters of wide public importance that require immediate and final determination ․“
2.RAP 4.4 states in relevant part that “[the] Supreme Court, to promote the orderly administration of justice may, ․ after certification by the Court of Appeals, transfer a case from the Court of Appeals to the Supreme Court ․“
3While the request for discretionary review was pending, the lower court rejected the State's request to suspend the effective date of the request for notification of the special judgment process. The lower court also issued a follow-up decision justifying its initial order to cancel the notices, canceled the trial date, dismissed the jurors, and stayed the proceedings pending the outcome of this discretionary review. The State filed an emergency motion in this court requesting a stay of the lower court's decision that canceled the notices, which our commissioner granted.
4These factors include: (1) Whether or not the defendant has a significant history, as a youth or an adult, of prior criminal activity; (2) If the murder was committed while the defendant was under the influence of extreme mental disorder; (3) Whether the victim consented to the act of murder; (4) If the defendant was an accessory to a murder committed by another person when the defendant's participation in the murder was relatively minor; (5) If the defendant acted under duress or domination of another person; (6) If, at the time of the murder, the defendant's ability to assess the wrongfulness of his conduct or to conform his conduct to the requirements of the law was substantially impaired as a result of mental illness or defect. However, a person deemed to have an intellectual disability under RCW 10.95.030(2) cannot, under any circumstances, be sentenced to death; (7) Whether the defendant's age at the time of the crime requires leniency; and (8) Whether the defendant is likely to pose a danger to others in the future. RCW 10.95.070(1.070(8).
5Defendants and the trial court believe that Washington's capital punishment scheme is unique in that it directs prosecutors to consider mitigating circumstances rather than aggravating circumstances when reaching a decision on the application of capital punishment. However, it is still not clear why uniqueness of statute should effect a different statutory interpretation.
CONCORDAMOS: MADSEN, C.J., JOHNSON, OWENS, FAIRHURST, JOHNSON, STEPHENS, WIGGINS, GONZÁLEZ, McCLOUD, JJ.