¶134 (dissenting)
Sanders, J.A man who opposes the death penalty, no less than one who favors it, can make the discretionary judgment entrusted to him by the State and can thus obey the oath he takes as a juror. But a jury from which all such men have been excluded cannot perform the task demanded of it.
Witherspoon v. Illinois, 391 U.S. 510, 519, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968).
¶135 Because I cannot uphold a death sentence resulting from a trial riddled with constitutional error, I dissent.
The Trial Court’s Excusal of Juror 39 for Cause Violated Mr. Yates’ Federal and State Constitutional Right to a Fair and Impartial Jury
¶136 A criminal defendant is guaranteed the right to trial by an impartial jury under the Sixth and Fourteenth Amendments to the United States Constitution, as well as under article I, sections 3 and 22 of the Washington Constitution. Taylor v. Louisiana, 419 U.S. 522, 95 S. Ct. 692, 42 L. Ed. 2d 690 (1975); State v. Rupe, 108 Wn.2d 734, 748, 743 P.2d 210 (1987). A trial court infringes on this right when it excuses for cause jurors who voice “general objec*800tions to the death penalty or expressed conscientious or religious scruples against its infliction.” Witherspoon, 391 U.S. at 522. As stated by Justice Harry A. Blackmun, writing for the majority in Gray v. Mississippi, “To permit the exclusion for cause of other prospective jurors based on their views of the death penalty unnecessarily narrows the cross section of venire members. It ‘stackfs] the deck against the petitioner.’ ” 481 U.S. 648, 658-59, 107 S. Ct. 2045, 95 L. Ed. 2d 622 (1987) (alteration in original) (quoting Witherspoon, 391 U.S. at 523).
¶137 A juror may be challenged for cause if “the juror’s views on capital punishment would ‘ “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” ’ ” State v. Hughes, 106 Wn.2d 176, 181, 721 P.2d 902 (1986) (quoting Wainwright v. Witt, 469 U.S. 412, 424, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985)). Excusing a juror who simply expresses conscientious objections to the death penalty violates the Witt test as “[t]he crucial inquiry is whether the venireman could follow the court’s instructions and obey his oath, notwithstanding his views on capital punishment.” Dutton v. Brown, 812 F.2d 593, 595 (10th Cir. 1987) (emphasis added); see also State v. Gregory, 158 Wn.2d 759, 814, 147 P.3d 1201 (2006) (“Under the Witt test, a juror may express scruples about capital punishment, or even personal opposition to the death penalty, so long as he or she can ultimately defer to the rule of law.”).
¶138 Juror 39’s excusal was impermissible under Witt's impartiality test as she repeatedly assured the court she would listen to the evidence and follow the court’s instructions. In her confidential questionnaire, Juror 39 answered she did not “hold beliefs or convictions ... that would cause [her] to automatically vote against a death sentence without regard to any evidence that might be presented at the trial.” Confidential Juror Questionnaire (Juror 39) at 31. She also answered “No” to the question “Would your attitude about the death sentence prevent you from making an impartial decision about the guilt (phase 1) of a person *801charged with aggravated first degree murder?” and “No” to “Is there any reason you could not be fair to the prosecution or defense in a case where the death penalty is a possibility?” Id.
¶139 Juror 39 further affirmed her ability and willingness to set aside her personal beliefs and follow the court’s instructions during the State’s examination, which reads in relevant part:
Q ... [CJould you personally vote to execute the defendant?
A Yes, I would.
Q And what would you base that on?
A If all the evidence is there ... if it goes in that direction, I would do it, yes.
34 Verbatim Report of Proceedings (VRP) at 2279 (emphasis added).
¶140 Throughout her examination, Juror 39 never once stated she was unable to follow the court’s instructions regarding capital punishment. Instead, her responses evidenced “a fundamental acceptance of [her] duty to make an independent and thorough evaluation of the facts and a willingness to follow [the court’s] instructions and oath.” In re Pers. Restraint of Lord, 123 Wn.2d 296, 311, 868 P.2d 835 (1994). As such, the court’s excusal for cause of Juror 39 runs counter to our precedent. See Gray, 481 U.S. at 653 (juror who expressed confusion but ultimately acknowledged she could consider the death penalty in an appropriate case was impermissibly struck for cause); Gregory, 158 Wn.2d at 814 (juror properly excused when she answered “ ‘probably not’ ” at least three times when asked if she could vote for the death penalty); State v. Cross, 156 Wn.2d 580, 596, 599, 132 P.3d 80 (2006) (juror properly excused due to his statement, “ T would have a hard time [sentencing a paraplegic to death]. I’m not sure I could be totally unbiased.’ ” (Alteration in original.) Another juror was properly excused when he “gave every indication he would never seriously consider [the death penalty].”); State v. Davis, 141 Wn.2d 798, 859, 10 P.3d 977 (2000) (juror rightly dismissed because “her responses to questions ... indicated *802her religious convictions would not allow her to impose the death penalty, and that, if life without parole were a sentencing option, she would vote for that option”); State v. Gentry, 125 Wn.2d 570, 635, 888 P.2d 1105 (1995) (dismissed jurors testified they were not certain they could impose the death penalty and could not assure the trial court they would be able to follow its instructions).
¶141 Both the trial court and the majority improperly cite to Juror 39’s personal opposition to the death penalty as evidence of her inability to perform her task as a juror. The trial court explained it excused Juror 39 for cause because “even in response to [the court’s] question she drew upon her personal beliefs.” 34 VRP at 2286. In the same vein, the majority cites to Juror 39’s answers regarding her personal beliefs about capital punishment as indication of her inability to remain sufficiently impartial. See majority at 743 (citing to Juror 39’s response that she was “ ‘[o]pposed in every possible circumstance’ ” (emphasis omitted) (quoting Confidential Juror Questionnaire (Juror 39) at 29) to a question asking for a description of her view of capital punishment and citing to Juror 39’s response that her views on capital punishment were based on “ ‘a philosophy of [hers], [her] personal opinion’ ” (emphasis added) (alterations in original) (quoting 34 VRP at 2276)). The majority also points out that Juror 39, after affirming her personal opposition to the death penalty and then indicating she could vote to impose the death penalty, “admitted the response was contradictory.” Majority at 743.
¶142 Contrary to the majority’s implication, separating one’s personal beliefs from one’s ability to fulfill her duty as a juror is not contradictory, but precisely what the law requires. See Lockhart v. McCree, 476 U.S. 162, 176, 106 S. Ct. 1758, 90 L. Ed. 2d 137 (1986) (“It is important to remember that not all who oppose the death penalty are subject to removal for cause in capital cases; those who firmly believe that the death penalty is unjust may nevertheless serve as jurors in capital cases so long as they state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law.”).
*803¶143 Accordingly, the majority’s fixation on Juror 39’s personal opinions about the death penalty is improper. The appropriate question is not whether a juror harbors personal reservations against capital punishment but whether “a juror who believes that capital punishment should never be inflicted and who is irrevocably committed to its abolition could nonetheless subordinate his personal views to what he perceived to be his duty to abide by his oath as a juror and to obey the law of the State.” Witherspoon, 391 U.S. at 514 n.7 (emphasis added). What the trial court describes as Juror 39’s “dr[awing] upon her personal beliefs” in response to the court’s questions is merely Juror 39 distinguishing her personal beliefs from her ability to perform her task as a venireman; in short, Juror 39’s answers reflect exactly what the law demands. 34 VRP at 2286.
¶144 Even the United States Supreme Court’s most recent opinion regarding death qualification, Uttecht v. Brown, 551 U.S._, 127 S. Ct. 2218, 167 L. Ed. 2d 1014 (2007), does not support the court’s dismissal of Juror 39. The Uttecht Court, in a five to four decision, reversed the Ninth Circuit Court of Appeals’ holding that Juror Z’s excusal was unconstitutional. The Court determined dismissal was justified as “the transcript shows considerable confusion on the part of [Juror Z], amounting to substantial impairment.” Id. at 2230. It observed Juror Z “had both serious misunderstandings about his responsibility as a juror and an attitude toward capital punishment that could have prevented him from returning a death sentence under the facts of this case.” Id. at 2220. This court below also upheld Juror Z’s excusal, opining, “On voir dire [Juror Z] 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....” State v. Brown, 132 Wn.2d 529, 604, 940 P.2d 546 (2006), aff’d sub nom. Uttecht, 551 U.S. _, 127 S. Ct. 2218. The Uttecht Court affirmed Juror Z’s excusal notwithstanding the fact the juror stated six times, *804over the course of questioning, “that he could consider the death penalty or follow the law.” Uttecht, 127 S. Ct. at 2227. The Court stated such assurances “do not overcome the reasonable inference from [Juror Z’s] other statements that in fact he would be substantially impaired in this case because there was no possibility of release.” Id. at 2229.
¶145 Unlike Juror Z in Uttecht, Juror 39 never misstated or misunderstood the law; instead, she repeatedly assured the court she was able to fulfill her role as a juror, indicating no less than nine times in her examination and questionnaire that she was able to follow the court’s instructions and impose a death sentence if necessary. Indeed the Uttecht Court stressed Witt’s instruction that “reviewing courts are to accord deference to the trial court,” stating, “[t]he judgment as to ‘whether a veniremen [sic] is biased ... is based upon determinations of demeanor and credibility that are peculiarly within a trial judge’s province.’ ” Id. at 2223 (second alteration in original) (quoting Witt, 469 U.S. at 428). And the Court explained, “when there is ambiguity in the prospective juror’s statements, ‘the trial court, aided as it undoubtedly [is] by its assessment of [the venireman’s] demeanor, [is] entitled to resolve it in favor of the State.’ ” Id. (alterations in original) (quoting Witt, 469 U.S. at 434).
¶146 But a trial court’s ruling that flies in the face of Witt’s impartiality standard should be owed no deference. And the fact that the court had exclusive province as to Juror 39’s demeanor may not trump that juror’s consistent, unambiguous commitment to impartiality or justify her erroneous removal. We must not underestimate the “significance of a capital defendant’s right to a fair and impartial jury.” Gray, 481 U.S. at 658. Because Juror 39’s for cause dismissal denied Robert Yates of his constitutional assurance of an impartial jury, his death sentence must be reversed. See id. at 668 (Where the trial court excuses a juror who qualifies as impartial under Witt, the error is never harmless and the remedy is reversal of the death sentence.).
*805 The Trial Court’s Erroneous Instruction on the “Common Scheme or Plan” Aggravator Lowered the State’s Burden of Proof by Eliminating the Requirement That There Be a Nexus between the Murders
¶147 The trial court lowered the State’s burden of proof by improperly defining, in jury instruction 20, the aggravating circumstance of RCW 10.95.020(10)34: commission of the murders as “part of a common scheme or plan.”
¶148 The court provided the following instruction defining “common scheme or plan”:
A “common scheme or plan” means there is a connection between the crimes in that one crime is done in preparation for the other.
A “common scheme or plan” also occurs when a person devises an overarching criminal plan and uses it to perpetrate separate but very similar crimes.
Clerk’s Papers at 4106 (Jury Instruction 20). The above instruction allowed the State to prove the presence of the common scheme or plan aggravator simply by showing Yates devised an overarching criminal plan and used it to perpetrate separate but very similar crimes. In short, the instruction eliminated the requirement this court has consistently demanded under RCW 10.95.020(10) — that there be a nexus between the murders. See State v. Finch, 137 Wn.2d 792, 835, 975 P.2d 967 (1999) (“Under [RCW 10.95.020(10)] multiple murders are required and there must be a ‘ “nexus between the killings.” ’ ” (emphasis added) (quoting State v. Pirtle, 127 Wn.2d 628, 661, 904 P.2d 245 (1995) (quoting State v. Dictado, 102 Wn.2d 277, 285, 687 P.2d 172 (1984)))); see also Finch, 137 Wn.2d at *806835 (a sufficient “nexus” exists between killings “when an overarching criminal plan connects both murders”).
¶149 As the majority notes, the court’s instruction erroneously relies on the two alternative definitions of “common scheme or plan” this court developed in State v. Lough, 125 Wn.2d 847, 889 P.2d 487 (1995). The Lough court determined,
There are two different situations wherein the “plan” exception to the general ban on prior bad acts evidence may arise. One is where several crimes constitute constituent parts of a plan in which each crime is but a piece of the larger plan. . . . The other situation arises when an individual devises a plan and uses it repeatedly to perpetrate separate but very similar crimes.
Id. at 854-55. But what the trial court and the majority fail to recognize is that the alternative definition provided in Lough was developed solely with regard to the admission of evidence under ER 404(b), that is, the Lough court neither contemplated nor addressed the common scheme aggravator under RCW 10.95.020. Stated differently, “the standard announced in Lough merely identifies the parameters of a court’s discretion to admit evidence as proof of a common scheme, and not the standard for when evidence will establish beyond a reasonable doubt that such a plan exists for purposes of RCW 10.95.020(10).” Br. of Appellant at 86-87. And, as Yates rightly points out, there is a “significant difference between what the State must proffer to convince a court to exercise its discretion to admit evidence and what the State must prove to obtain a conviction of aggravated first degree murder.” Id. at 88.
¶150 Not one of our cases has applied Lough’s alternative definition of common scheme or plan to RCW 10.95.020. And while the majority claims Yates ignores this court’s earlier reliance on Lough in Pirtle, the Pirtle court cited only to the first oí Lough’s definitions, thereby continuing to require a “nexus” between the killings for proof of the aggravator. See Pirtle, 127 Wn.2d at 662 (“[T]he common *807scheme or plan aggravator requires the killings be connected by a larger criminal plan.”). The Pirtle court did not, as the majority suggests, endorse application of Lough’s alternative definition of common scheme or plan to RCW 10.95.020.
¶151 Because the trial court’s instruction eliminated the requirement that the murders be connected by a common plan, Yates’jury was free to find the presence of the common scheme or plan aggravator based only on the fact that Mr. Yates killed both victims in a similar fashion.
¶152 If just one aggravating factor is dismissed for lack of proof, Yates’ death sentence must be reversed. A jury in a special sentencing proceeding must consider the following 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?’ ” RCW 10.95.060(4). “The jury is not instructed to consider the crime and separately consider the aggravating factors. Rather, the aggravators describe the circumstances of the ‘crime’ for which [the defendant] was found guilty.” State v. Brett, 126 Wn.2d 136, 169, 892 P.2d 29 (1995), conviction rev’d, sentence vacated on other grounds sub nom. In re Pers. Restraint of Brett, 142 Wn.2d 868, 16 P.3d 601 (2001). Thus, because Yates’ jury, assessing leniency, considered two aggravating factors,35 which lack sufficient proof, Yates’ sentence must be reversed.
¶153 Because the trial court’s dismissal of Juror 39 and the court’s erroneous instruction regarding the common plan or scheme aggravator demand reversal of Yates’ death sentence, I dissent.
Reconsideration denied December 24, 2007.
RCW 10.95.020 provides in part,
A person is guilty of aggravated first degree murder ... if he or she commits first degree murder . . . and one or more of the following aggravating circumstances exist:
(10) There was more than one victim and the murders were part of a common scheme or plan or the result of a single act of the person; ....
The majority concluded the evidence was insufficient to support the third alleged aggravating factor — that Yates murdered Melinda Mercer and Connie Ellis “ ‘to conceal the commission of’ the crime of patronizing a prostitute.” Majority at 755 (quoting RCW 10.95.020(9)).