(dissenting) — While I agree with the majority’s resolution of issues relating to the Defendant’s guilt phase, I cannot agree with its interpretation of the statute governing notice of intent to seek the death penalty. The majority misunderstands both the statute and our recent decision construing the statute. Accordingly, I respectfully dissent.
The State must file written notice of intent to seek the death penalty within thirty days of arraignment for aggravated murder, "unless the court, for good cause shown, extends or reopens the period for filing and service of the notice.” RCW 10.95.040(2) (emphasis added). The language makes clear the thirty-day period is not an absolute or rigid limit, provided there is good cause. Moreover, the statute explicitly provides for reopening the period even if it has already passed.
We recently construed what constitutes "good cause” to extend or reopen the notice period. State v. Dearbone, 125 Wn.2d 173, 883 P.2d 303 (1994). In Dearbone we said that good cause involves something more than "inadvertence alone.” Dearbone, 125 Wn.2d at 180. Good cause requires "a reason external to the prosecutor for his failure to serve notice.” Dearbone, 125 Wn.2d at 179. In other words, "[t]o show good cause, the State must first provide an external factor” for its failure to provide timely notice. Dearbone, 125 Wn.2d at 181. In addition, we suggested that a defendant’s "inducing] the prosecutor not to serve the notice” *721might constitute good cause to reopen the period. Dearbone, 125 Wn.2d at 183. In the present case, there was both a reason external to the prosecutor for the failure to serve timely notice and inducement on the part of the Defendant.
External Reason
The majority makes two crucial admissions. It admits that defense counsel and the prosecutor signed a proposed order to extend the time period on August 12, 1992 — two days before the thirty-day period elapsed.9 Majority at 714-15. The majority also admits the judge assigned to the case was out of town on August 12 and 13 and, therefore, unavailable to sign the extension order. Majority at 714. Surely the absence of the judge on the last two days of the filing period amounts to "a reason external to the prosecutor” under Dearbone.
It is true the State did not do everything humanly possible to have the agreement signed by a judge within the initial thirty-day period. As the majority points out, the State could have presented the order to another judge in Pierce County. However, "doing everything humanly possible” is not the standard for good cause. Dearbone required only "a reason external to the prosecutor for his failure to serve notice.” Dearbone, 125 Wn.2d at 179. The absence of the judge in the last two days of the filing period is a significant "external factor” relating to the *722State’s failure to provide timely notice.10 Dearborn, 125 Wn.2d at 181. That is all that is required by Dearbone for good cause to exist.
Inducement
There is also ample evidence that the Defendant induced the State not to timely file. The State did not attempt to file until the last two days of the period — when the judge turned out to be unavailable — because the Defendant had repeatedly indicated he wanted to extend the period. Luvene’s counsel, on the record, requested additional time beyond the initial thirty-day period in order to gather mitigating evidence.
[DEFENSE COUNSEL]: We’ve received a copy of notice of the consideration for the special sentencing procedure. I’ve explained to Mr. Luvene what this entails and the evidence that’s involved on our part as far as presenting a [m]itigation package to the prosecutor in order to hopefully head them off on this motion. He is ameanable [s/c] to allowing the Court to extend the August 13th date, which I’m, putting it on the record now, hut we would submit a written order through [the prosecutor] and have it signed by our client at the time.
Report of Proceedings, 7/14/92, at 7 (emphasis added). Luvene’s counsel not only requested an extension of time at the arraignment hearing on July 14, 1992, but continued to ask for the extension, including at the pretrial conference on July 17, 1992. In all, three distinct extensions were eventually ordered "for good cause shown.” Given Luvene’s repeated requests for additional time, the state did not fail to file through "inadvertence alone,” Dearbone, 125 Wn.2d at 180, but as a result of the assurance by the Defendant that he wished to extend the period. Indeed, until the nunc pro tunc ambiguity was discovered on ap*723peal, the Defendant thought he had successfully extended the period.
The mutual agreement to extend the period here stands in stark contrast to Dearbone. In Dearbone, all negotiations regarding extension were terminated the day before the end of the period, with the prosecutor refusing to extend the deadline a second time. Dearbone, 125 Wn.2d at 183. In contrast to Dearbone, here evidence "in the record suggests defense counsel induced the prosecutor not to serve the notice,” Dearbone, 125 Wn.2d at 183, with the inducement including a verbal agreement on the record. Had the Defendant reneged on the agreement sometime prior to the last two days of the thirty-day period, the State would simply have filed its notice. Instead, the State reasonably believed the Defendant’s assurances that a written request to extend would be forthcoming at some point prior to the expiration of the thirty-day period.
The majority contends that the judge, the Defendant, and the State anticipated formalizing the agreement to extend the period in writing. While this may be true, the statute requires no such formalization as a condition for either extending or reopening the period. Whether Luvene signed a statement agreeing to the extension, whether there was a written stipulation to extend, whether the judge wanted the matter taken care of by the end of July, are all irrelevant under the statute. The majority seems to think of the discussion of formalizing the extension request as creating a kind of contract to enter into a written stipulation and present it to the judge by the end of July. Majority at 716. We are not interpreting a contract; we are asking only whether good cause existed to reopen the period.
Even if one grants the majority’s contention that the parties anticipated a formalized agreement to extend, it only makes the argument for inducement more persuasive. That very anticipation created an obvious inducement to wait until the end of the period. The State did not file notice of intent to seek the death penalty earlier in the *724thirty-day period for a very good reason. It relied on the Defendant’s assurances that he would submit a request for extension in writing, prior to the expiration of the period. If anything, the Defendant’s assurances that he would request the extension in writing induced the State to put off filing notice until either (a) it received the Defendant’s written request to extend the period, or (b) it neared the end of the thirty-day period.
Nunc Pro Tunc
Luvene was arraigned on July 14, 1992 and, therefore, the deadline for filing notice of intent to seek the death penalty was initially August 13, 1992. An order was entered extending the period to October 23, 1992. The order reads:
This matter having come on before the above entitled court upon the stipulation of the Prosecuting Attorney and the defendant, and it appearing that good cause exists to extend the filing period, now, therefore,
IT IS HEREBY ORDERED:
That the period for filing and service of the Notice to Seek Death Penalty as provided in RCW 10.95.040 is extended to the date of October 23, 1992.
DONE IN OPEN COURT this 17 day of August, 1992. Nunc Pro Tunc August 12, 1992
Clerk’s Papers at 45. Although Luvene contends the record lacks external evidence that the order was in fact signed in open court, the statute does not require that extending or reopening the period be ordered in open court.
The order was signed August 17 and filed August 18, but was dated "Nunc Pro Tunc August 12, 1992.” The period was later extended to November 30 at the written request of Luvene’s assigned counsel. The period was extended a third time, to January 22, 1993, based on a stipulation of the prosecutor and the Defendant. Until *725this appeal, there was no question that both Luvene and the State had an interest in extending the period past the initial thirty days. There was no question that both agreed, repeatedly, to extend the period. It was only after trial, when the nunc pro tunc language became an issue, that any ambiguity arose.
I agree with the majority that signing the order nunc pro tunc was insufficient to extend the period. "The purpose of a nunc pro tunc order is to record some prior act of the court which was actually performed but not entered into the record at that time.” State v. Rosenbaum, 56 Wn. App. 407, 410, 784 P.2d 166 (1989) (citing State v. Melhorn, 195 Wash. 690, 692, 82 P.2d 158 (1938)). However, that makes no difference in light of the statute’s provision for reopening the period, since reopening by definition occurs only once the thirty-day period has elapsed.
The majority believes the trial court’s use of the word "extend” rather than "reopen” in its initial August 17th order somehow settles the issue. Majority at 716. However, since the trial court had the power to reopen the period once the thirty days had passed, the only relevant issue is whether good cause existed to reopen the period. Moreover, this court reviews the existence of good cause in this context de novo. Dearbone, 125 Wn.2d at 178. We are not bound by the trial court’s choice of "extend” rather than "reopen,” since we review the existence of good cause independently of the trial court.
The majority notes Luvene neither signed the order nor was present when it was signed. Majority at 715 n.4. The Defendant’s agreement to extend the period, of course, is not needed. Contrary to what the majority implies, extending or reopening the period in no way hinges on the Defendant’s consent. See RCW 10.95.040. Given good cause, a trial court can extend or reopen the period regardless of the Defendant’s wishes. As we recently noted in a similar context, "[t]he court is part of the proceeding and is not a potted-palm functionary, with only the attorneys *726having a defined purpose.” State v. Ford, 125 Wn.2d 919, 924-25, 891 P.2d 712 (1995).
Conclusion
The majority transforms an ordinary requirement of "good cause shown” into a requirement that the State use all possible means to timely serve the Defendant, even when the Defendant has agreed to extend the period, and when the judge assigned to the case is out of town for the final two days of the period. That was not our holding in Dearbone, and it does not conform with common sense. I would hold good cause existed to reopen the period.
Dolliver and Alexander, JJ., concur with Durham, C.J.
The majority appears to admit the proposed order was timely signed by defense counsel and the prosecutor, but also states that Luvene "denies that he agreed to any such order.” Majority at 715. It is unclear whether this means Luvene denies he personally agreed to the order, or whether his present counsel contends Luvene’s counsel at the time did not sign the proposed order. As I will argue infra, whether Luvene personally agreed to the extension is irrelevant under the statute, provided good cause to extend or reopen the period existed.
The majority’s admissions are based on information provided at oral argument by the State. To the extent factual ambiguities exist, the majority’s resolution of the notice issue without supplementing the record is inappropriate.
Especially in death penalty cases, it is good practice for the assignment judge to retain exclusive control of all proceedings to the extent possible. As a matter of policy, requiring "another judge in Pierce County” to step in, majority at 714, seems both unnecessary and unwise. It is precisely to meet exigencies such as occurred in this case that good cause exceptions exist.