(dissenting) — Without doubt the most damning evidence admitted against Cal Brown in the penalty phase was his conviction for slitting a woman’s throat in California immediately after murdering his Washington *465victim. If this evidence were even arguably inadmissible, his appellate counsel’s failure to fight for its suppression on appeal was inexplicable.
One’s constitutional right to the effective assistance of counsel is violated when it is shown (1) counsel’s representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
During the death phase of Brown’s trial the trial court, over objection, permitted evidence of convictions for offenses committed after the Washington murder to be presented under a statute which allows evidence of only prior criminal activity. There can be no question this evidence was extremely prejudicial to a man seeking mercy from a jury of his peers. Nor is it surprising the jury sentenced Brown to death in light of this evidence. Therefore the failure of Brown’s appellate counsel to assign error on appeal to this ruling raises the specter of ineffective assistance of appellate counsel which cannot easily be dispelled.
The admissibility of this evidence turns on a question of statutory construction which we must review de novo. Health Ins. Pool v. Health Care Auth., 129 Wn.2d 504, 507, 919 P.2d 62 (1996).
RCW 10.95.070 mandates what may and may not be considered in the penalty phase of a capital trial. That statute provides 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 an adult, of prior criminal activity,
RCW 10.95.070 (emphasis added). Although the statute does not state, in so many words, that “prior” criminal activity is that activity which occurred prior to the crime in *466question, I posit no other view makes sense. Simply put, if the legislature intended to allow evidence of any convictions returned through the time of trial it would not have said “prior” convictions, it would have said “any” convictions, or perhaps would have said nothing at all. Further I posit the majority’s reading renders the term “prior” mere surplus-age since by the majority’s understanding every offense would be by necessity “prior” to the trial, denuding the term of all practical consequence or purpose.
Drafters of legislation “ ‘are presumed to have used no superfluous words and we must accord meaning, if possible, to every word in a statute ....’” In re Recall of Pearsall-Stipek, 141 Wn.2d 756, 767, 10 P.3d 1034 (2000) (quoting Greenwood v. Dep’t of Motor Vehicles, 13 Wn. App. 624, 628, 536 P.2d 644 (1975)); cf. City of Bellevue v. Lorang, 140 Wn.2d 19, 25, 992 P.2d 496 (2000) (court will not construe statute to render term superfluous).
The majority glosses over this issue by saying it is sufficient that the “prior conviction” be established “prior to conclusion of the case before the court,” majority at 452, apparently assuming the legislature specified “prior” convictions so as not to allow proof of convictions which occurred after “conclusion of the case before the court.” Id. But posttrial convictions by their nature cannot exist until after the trial.
The rules of statutory construction require we avoid interpretations which yield absurd results or fail to give effect to the legislative intent. State v. Azpitarte, 140 Wn.2d 138, 141-42, 995 P.2d 31 (2000). If admission into evidence of all convictions were the meaning intended by the legislature it could have completely omitted the term “prior” without changing the nature of admissible evidence in any imaginable proceeding under the majority’s rule. “Prior” would mean nothing.
The majority justifies its reach by referring the reader to State v. Gentry, 125 Wn.2d 570, 641, 888 P.2d 1105 (1995). Majority at 452. Such reliance is also misplaced. In Gentry we considered only whether the prosecutor could reason*467ably draw inferences from facts in evidence. Gentry, 125 Wn.2d at 641. Although a postcommission offense was admitted into evidence in the sentencing phase, the propriety of its admission under RCW 10.95.070 was neither challenged nor discussed. If resolution of an issue not necessary to reach the result is nonbinding dicta, In re Estate of Levas, 33 Wn.2d 530, 534, 206 P.2d 482 (1949), extrapolation of prior silence on an issue not even before the court must be even less.
Although I reject that there can be two reasonable meanings fairly attributable to this aspect of the statute, a statute is said to be ambiguous if it can be reasonably interpreted in two or more different ways. In re Post Sentence Review of Charles, 135 Wn.2d 239, 250, 955 P.2d 798 (1998). However even if we were to grant that this statute is ambiguous, the result would be no different because the rule of lenity requires criminal statutes to be strictly construed against the state, resolving all ambiguities in favor of the accused. State v. Bell, 8 Wn. App. 670, 674, 508 P.2d 1398, aff’d, 83 Wn.2d 383, 518 P.2d 696 (1973).
But the majority stands the lenity rule on its head, opining “[n]othing in RCW 10.95.070(1) indicates a sentencing jury may only consider convictions occurring prior to the date of the crime for which a defendant is being tried.” Majority at 452. Au contraire, a proper application of the rule of lenity requires the court to observe that if nothing in the statute expressly allows subsequent offenses to be considered as prior convictions they may not be. State v. McGee, 122 Wn.2d 783, 787, 864 P.2d 912 (1993). By the majority’s reasoning, however, this court’s previous silence on an issue not raised and the legislature’s silence on the meaning of an alleged ambiguous term apparently combine to justify an untenable result in the most serious of all criminal proceedings—one upon which a man’s life depends.
We need not decide whether counsel’s unexplained failure to raise this issue on appeal “ ‘more likely than not altered the outcome in the case’ ” to justify reversal, al*468though I posit it did. State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987) (quoting Strickland v. Washington, 466 U.S. 668, 693, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984)). Rather, we must determine whether there is a probability “ ‘sufficient to undermine confidence in the outcome’ ” that, “ ‘but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Id. (quoting Strickland, 466 U.S. at 694).
Notwithstanding the jury already heard testimony related to the subsequent convictions in the guilt phase, readmission of such evidence in the sentencing phase wrongly invited the jury to consider evidence of the subsequent criminal conduct as a lawful basis to impose the death penalty. The trial court failed to appreciate the differing standards and reasons for admission between the two phases of the trial, saying “if the jury had not heard about what happened in Palm Springs, California, this decision might very well be different.” State’s Resp. to Personal Restraint Pet. (quoting 41 Report of Proceedings at 38-41). While the evidence was arguably admissible in the guilt phase as res gestae,91 no such basis existed in the penalty phase—which is governed solely by RCW 10.95.070. Rather than following the controlling statute and applying its plain language, the trial court improperly admitted the evidence in the penalty phase simply because it had already been admitted for other (inapplicable) reasons in the guilt phase.
As Brown was entitled to a presumption of leniency at his capital sentencing proceeding, see State v. Brett, 126 Wn.2d 136, 191, 892 P.2d 29 (1995) (citing RCW 10.95.060(4)), there is certainly at least a reasonable probability that the erroneous introduction of this highly prejudicial evidence overcame that presumption in the mind of at least one juror. This would have been determinative since absent *469absolute unanimity Brown would not have received the death sentence. The issue was ripe for appeal, failure to raise it was unreasonable, and the error was prejudicial.
Prior means prior.
I dissent.
Reconsideration denied June 13, 2001.
The admissibility of the subsequent offense evidence under the res gestae exception was problematic in Brown’s original appeal. See State v. Brown, 132 Wn.2d 529, 634-35, 940 P.2d 546 (1997) (Madsen, J., concurring in part, dissenting in part).