(dissenting) — I dissent for four reasons. First, the challenged summary chart29 is inaccurate and argumentative. As a result, the trial court erred both in admitting the chart and in sending it to the jury room. *919Second, the evidence the State elicited during the cross examination of Lord's father was prejudicial and did not rebut any mitigating evidence. Therefore, admission of that evidence violates the rule set out in State v. Bartholomew, 101 Wn.2d 631, 683 P.2d 1079 (1984) (Bartholomew II).30 Third, the trial court erred in allowing the State to cross-examine Lord's allocution statement. Fourth, Lord's sentence is disproportionate to that generally given in similar cases.
The error in admission of the summary chart is constitutional error since it violates Lord's right to due process. Therefore the error requires reversal unless the State proves beyond a reasonable doubt that the error was harmless. State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986). The State has not met its burden, and we should reverse the finding of guilt. Even if that were not the case, the errors in the sentencing phase require the vacation of the sentence. Therefore, I dissent.
I
Summary Chart
As the majority correctly points out, the danger in a summary chart is that the jury "might rely upon the alleged facts in the summary as if these facts had already been proved or as a substitute for assessing the credibility of witnesses." Majority opinion, at 856. That is exactly the problem in this case.
The State's theory is that Lord killed Parker in his brother's workshop, wrapped her body in an orange U-Haul blanket, and used his brother's truck to dispose of the body. To support that theory, the State presented hundreds of pieces of trace evidence that purportedly link Parker to the blanket, the workshop, and the truck. The chart supposedly summarizes the experts' testimony surrounding that evidence.
*920In fact, the chart does not accurately summarize that testimony. Instead, the chart summarizes the State's interpretation of the experts' testimony. All of the experts' testimony was necessarily speculative and inconclusive. Yet the chart takes that speculative, inconclusive testimony and converts it into definitive, conclusory statements. In so doing, the chart unfairly argues only the State's theory of the case.
For example, there is a category on the chart labeled "T. Parker Head Hairs". The key piece of evidence allegedly linking all of the trace evidence to Lord and Parker is the orange U-Haul blanket. The crime lab found a human hair on the blanket. Cindy Jay testified it is impossible to determine for certain who is the source of a particular hair sample.31 The best she could conclude was that "Tracy Parker cannot be eliminated as the source" of the hair found on the blanket.32 The chart, however, shows positively that one of Parker's head hairs was found on the blanket. In looking at the chart one reaches the inevitable conclusion that Parker had contact with that blanket. Thus the chart takes the speculative testimony that the hair might be Parker's, draws the inference most favorable to the State, and improperly concludes for the jury that the hair is Parker's.
Similarly, there is a category on the chart labeled "Coarse Body Hair (Defendant)". The testimony, however, established only that the hair "could have" come from the defendant.33 The chart again unfairly draws the conclusion for the jury that the hair is that of the defendant.
The majority concludes any possible prejudice from the coarse body hair category "was eliminated by Lord's concession during closing argument that he had contact with the orange blanket." Majority opinion, at 860. Lord, *921however, conceded nothing. He did not testify in the guilt phase of the trial. His attorney, in closing, did concede Lord had contact with the blanket. That "concession", however, is not dispositive of the issue of whether the hair did in fact come from Lord. Furthermore, that statement is not substantive evidence that the jury may consider.
The majority travels over shaky ground when it concludes an attorney in a criminal case may "concede" a fact for the attorney's nontestifying client. Such a conclusion raises serious questions about ineffective assistance of counsel and about the defendant's right to remain silent. It also ignores the precept that an attorney's argument is not evidence. In support of this dangerous proposition, the majority cites only United States v. Abbas, 504 F.2d 123 (9th Cir. 1974), cert. denied, 421 U.S. 988 (1975). There is no language in Abbas, however, referring to any concessions of either the defendant or his attorney. Abbas simply does not support the majority's conclusion on this issue.
A few other examples of the chart's inaccuracies will suffice to show how it unfairly mischaracterizes the testimony. No expert examined the wood chips or testified that they had a common source.34 Yet the chart links all of the chips together and leads to the inescapable conclusion that the chips are from a common source. Similarly, there was testimony that the orange fibers "could have" a common source.35 Yet the chart conclusively links all of the fibers together. The same is true of all of the paint samples and metal fragments listed. The testimony was always that they "could have" a common source, or that they were "similar". Yet the chart conclusively links all of them together, and one viewing the chart cannot help but conclude all of the trace evidence did in fact come from a common source.
*922The prosecutor argued this very point to the jury. In her closing the prosecutor referred to the chart and said:
the [trace evidence] items within here match with the orange blanket, match with items from the shop, match with items on Tracy Parker's body, match with the truck ....
Report of Proceedings vol. XLVI, at 7312. While it is proper for the prosecutor to draw such inferences from the testimony, it is improper for the chart to show the evidence in such a conclusory form. Lloyd v. United States, 226 F.2d 9, 17 (5th Cir. 1955).
The prejudice that results from such evidence is clear. The State used the testimony concerning all . of the different samples of trace evidence to link Lord to the blanket, and the blanket to the victim. That is certainly a proper inference for the prosecutor to draw from the evidence. The chart, however, moves out of the realm of inference and into the realm of fact. The chart inescapably leads an observer to conclude that all of the trace evidence did in fact come from the same source, and that therefore (for example) the red paint found on Tracy Parker's hair is the same as the red paint found on the blanket and on the broom in Kirk Lord's workshop. Thus testimony that the three red paint chips were "similar" is transformed into a statement that the chips were the same. When taken together, the transformation of the speculative, inconclusive testimony about all of the hundreds of pieces of trace evidence into a conclusive display of fact unduly prejudiced Lord. The chart misleads the jury by unfairly emphasizing the State's case, and it creates the impression that the underlying facts upon which the chart is based have been conclusively established. Therefore, the trial court erred in admitting the chart. Accord, 5 J. Weinstein & M. Berger, Evidence § 1006[07], at 1006-15 (1983).
The trial court then compounded the error by sending the chart to the jury room. Inaccurate summary charts should not be sent to the jury room. United States v. Cox, 633 F.2d 871, 874 (9th Cir. 1980), cert. denied, 454 U.S. *923844 (1981).36 Such evidence "presentís] an unfair picture of the testimony at trial and can be a potent weapon for harm due to its great persuasiveness." Cox, 633 F.2d at 874. Admitting inaccurate, misleading charts inevitably prejudices the defendant and requires revérsal. United States v. Altruda, 224 F.2d 935, 942 (2d Cir. 1955).
According to the majority, any prejudice caused by the errors in the chart were cured by the fact the jurors heard the equivocal and uncertain nature of the experts' testimony. The majority believes that because the jurors heard all of the testimony, then they could not have been misled by the chart's inaccuracies. In fact, the opposite is true.
As the majority points out, the State's experts testified for all or part of 18 days. Much of the testimony was repetitive and monotonous. The experts referred to many of the exhibits by two and sometimes three different identification numbers.37 Buried within all of that testimony were the equivocal statements that various pieces of trace evidence "could have" come from a common source.38 Thus the jurors could easily have been confused as to what exactly was being testified to. Once the jurors were in *924their deliberations, it would have been easy and perhaps natural for them to rely heavily on the chart and its inaccuracies.
Thus the jury may have relied "upon the alleged facts in the summary as if these facts had already been proved or as a substitute for assessing the credibility of witnesses." Scales, 594 F.2d at 564. Furthermore, sending the chart to the jury room allowed the chart to become a continuing voice for the State's interpretation of the evidence. The fact that the jury may have relied on the inaccurate chart is enough to establish prejudice.
Reversal is required unless the State proves beyond a reasonable doubt that the error was harmless. The error was harmless only if the untainted evidence is so overwhelming that it necessarily leads to a finding of guilt. State v. Guloy, 104 Wn.2d 412, 426, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986). The State has not met its burden of proving the error harmless.
The majority concludes that the prejudice caused by sending the chart to the jury room was eliminated by the court's limiting instruction, and by the defense cross examination of the experts. However, limiting instructions cannot cure the error where, as here, the chart is too conclusory and emphasizes too much of the State's case. United States v. Scales, 594 F.2d 558, 564 (6th Cir.), cert. denied, 441 U.S. 946 (1979).
The majority relies primarily on United States v. Abbas, 504 F.2d 123 (9th Cir. 1974), cert. denied, 421 U.S. 988 (1975), to support the argument that a limiting instruction and an opportunity to cross-examine cures error. Abbas is distinguishable because there the court found the challenged charts contained no errors related to the counts for which the jury convicted the defendant. 504 F.2d at 126. In contrast, exhibit 143 here contained numerous errors by inaccurately summarizing the experts' inconclusive testimony as conclusively proven facts. The majority also cites United States v. Krasn, 614 F.2d 1229 (9th Cir. 1980). There is nothing in Krasn, *925however, that indicates there were in fact errors in the challenged chart.
The most critical distinction between the cases the majority cites and this case is that none of the cases the majority relies on are capital cases. As the majority correctly observes, we are required to apply heightened scrutiny in capital cases.39 Thus the reasoning in noncapital cases is not dispositive.
The purpose of heightened scrutiny is to assure the existence of the greater degree of reliability that is required before the death penalty may be imposed. Murray v. Giarratano, 492 U.S. 1, 8-9, 106 L. Ed. 2d 1, 109 S. *926Ct. 2765, 2770 (1989). That greater degree of reliability requires not only a heightened scrutiny, it also requires special constraints on procedures used to convict a defendant of a capital offense. Murray, 492 U.S. at 8-9. Thus procedures that are permissible in a noncapital case are not' always allowable in a capital case.
In Lockett v. Ohio, 438 U.S. 586, 604, 57 L. Ed. 2d 973, 98 S. Ct. 2954 (1978), the Court held capital juries cannot be precluded from considering any relevant mitigating evidence, including aspects of the defendant's character. The Court acknowledged, however, that state legislatures are free to limit the evidence a noncapital sentencer may consider. 438 U.S. at 603. The Court also acknowledged that legislatures are free to enact mandatory sentences in noncapital cases. 438 U.S. at 605 n.13. A legislature may not, however, enact a mandatory death penalty. Woodson v. North Carolina, 428 U.S. 280, 49 L. Ed. 2d 944, 96 S. Ct. 2978 (1976).
In Beck v. Alabama, 447 U.S. 625, 65 L. Ed. 2d 392, 100 S. Ct. 2382 (1980), the Court held a death sentence may not be imposed where a statute prohibited the jury from considering a lesser included, noncapital offense. The Court noted that while the constitution does not require the giving of lesser included offense instructions in non-capital cases, the need for heightened reliability in capital cases means the trial court must give such instructions where warranted by the evidence. 447 U.S. at 637-38.
Thus the constitution requires not only that we engage in a closer, more careful review of the record, it also requires us to determine that the procedures used meet the standard of increased reliability. The trial court erred both in admitting the chart and in sending that chart to the jury room. Even if that error could be corrected in a noncapital case by giving a limiting instruction and allowing cross examination, the qualitative difference between the death penalty and any other punishment requires us to apply stricter procedures and heightened scrutiny in *927this case.40 The admission of the chart and the trial court's subsequent decision to send the chart to the jury room undermine the reliability of the jury's decision. Therefore this court should reverse the finding of guilt.
II
A. Violation of Bartholomew.
State v. Bartholomew, 101 Wn.2d 631, 683 P.2d 1079 (1984) (Bartholomew II) limits the evidence the State may present at the penalty phase of a capital trial. The State is
limited to defendant's criminal record, evidence that would have been admissible at the guilt phase, and evidence to rebut matters raised in mitigation by the defendant.
101 Wn.2d at 642. Any rebuttal evidence the State offers is subject to a balancing test similar to that contemplated by ER 403. 101 Wn.2d at 643. Such evidence is only admissible if its rebuttal value outweighs its prejudicial effect. 101 Wn.2d at 643.
As discussed below, the challenged evidence in this case does not properly rebut any mitigating evidence. Additionally, even if that evidence had some slight rebuttal value, that value is outweighed by the evidence's prejudicial effect. Therefore the court erred in admitting all of the challenged evidence.
The majority acknowledges the Bartholomew test and then analogizes it to ER 405. That analogy ignores a basic difference between the two tests. ER 405(a) states:
In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation. On cross examination, inquiry is allowable into relevant specific instances of conduct.
Thus, under ER 405, once character evidence is introduced there is a presumption that rebuttal evidence is admissible.
*928Under the Bartholomew test, however, there is a presumption that rebuttal evidence is inadmissible. The rule as stated in Bartholomew II is:
Only if the rebuttal value of the evidence outweighs the prejudicial effect should the evidence be admitted.
101 Wn.2d at 643 (quoting State v. Bartholomew, 98 Wn.2d 173, 198, 654 P.2d 1170 (1982), State's cert. granted and remanded, 463 U.S. 1203, defendant's cert. denied, 463 U.S. 1212 (1983)). Thus the presumption is that rebuttal evidence is inadmissible. The State can overcome that presumption by proving that the evidence's rebuttal value outweighs its prejudicial effect.
Applying the Bartholomew test is a 2-step process. The first step is to determine whether the offered evidence has any rebuttal value. If the evidence has no rebuttal value, it is inadmissible. Once it is established that the evidence has some rebuttal value, the second step is to determine whether that rebuttal value outweighs the evidence's prejudicial effect. If it does not, then the evidence is inadmissible.
Lord assigns error to the admission of evidence elicited during the State's cross examination of his father, Leslie.41 Specifically, Lord argues the trial court erred in allowing the State to elicit information concerning the facts underlying Lord's second degree murder conviction and his conviction for unlawful imprisonment, the fact that he violated probation, and the fact that he fled from the police. Because I believe both that none of that evidence was proper rebuttal evidence, and that the evidence is prejudicial, I would vacate Lord's sentence.
The majority concludes that all of the challenged evidence was properly admitted to rebut the "evidence of good character offered by Lord's father." Majority opinion, at 894. As an example of the supposed evidence of "good character", the majority cites two exchanges in which Leslie said his son was a "good boy". Read in the proper *929context of the entire direct examination, however, those comments cannot properly be seen as being offered as evidence of good character.
The first such comment occurred in the following exchange:
Q: Could you describe for this jury what type of child Keith was up until the age of 14?
A: He was a good boy, a loving kid and just a real good kid----
Report of Proceedings vol. L, at 7723. Taken in proper context, Leslie's testimony was that his son was a good boy up until the age of 14. All of the challenged evidence concerns events that happened after Lord turned 14. There is no evidence that suggests Lord was not "a good boy" prior to turning 14. Thus none of the State's evidence rebuts Leslie's testimony.
The following exchange occurred at the end of the defendant's direct examination of Leslie.
Q: Les, do you know what Keith has been convicted of?
A: Yes, I do.
Q: You know what his past is, don't you?
A: Yes.
Q: How do you feel about him now?
A: I love him dearly. I love him. He's a good boy.
Report of Proceedings vol. L, at 7730. That was the last question and answer in the direct examination. Taken in context, the statement "[h]e's a good boy" cannot reasonably be interpreted as evidence of Lord's good character. Instead, it was simply a profession of a father's love for his son, despite all of the son's mistakes. The statement was not a positive factual assertion that warranted rebuttal. It was an emotional response to the question "How do you feel about [defendant]?" (Italics mine.)
This conclusion is borne out by Leslie's later answer to one of the prosecutor's questions. In response to the prosecutor's question of whether he still considered his son to be a good boy, Leslie replied: "Well, I still love him. He's my son." Report of Proceedings vol. L, at 7740. This shows that Leslie was not offering an objective opinion as *930to his son's character. Instead, he was simply reaffirming that he still loved his son.
This is not a case where a witness must be impeached with specific instances of the defendant's bad conduct in order to give the jury a proper context for evaluating the witness' testimony. Leslie testified he knew about all of his son's convictions, and about the facts of the Tracy Parker murder, but still loved his son. The jury knew about Leslie's bias, and could evaluate how much weight to give his testimony. In light of that, there was no need to attempt to "impeach" Leslie. Nothing in his testimony could have reasonably left a false impression as to Lord's character. The only impression the testimony could have reasonably left with the jury was that Leslie still loved his son.
Leslie did offer as mitigating evidence the fact that his son was a good carpenter and that his son had been in a serious car accident. The fact that Leslie loved his son may also be considered mitigating evidence. See, e.g., Payne v. Tennessee, _ U.S. _, 115 L. Ed. 2d 720, 111 S. Ct. 2597, 2602 (1991); Jones v. Butler, 864 F.2d 348, 366 (5th Cir. 1988), cert. denied, 490 U.S. 1075 (1989). However, none of the State's challenged evidence rebuts that mitigating evidence. Therefore the evidence's rebuttal value is nonexistent, and it was error to admit that evidence.
Even if the evidence has some rebuttal value, that rebuttal value does not outweigh the evidence's prejudicial effect. Therefore the court still erred in admit,ting that evidence.
On cross examination the State elicited information that the victim in Lord's unlawful imprisonment conviction was hospitalized. The majority asserts this was not prejudicial because the jury already knew the crime was " 'effected by violence, menace, fraud, and deceit'." The majority concludes "[t]he infliction of injuries is inherent in a crime committed by violence." Majority opinion, at *931893. That conclusion defies both common sense and the law.
Injury simply is not an inherent part of a crime of violence.42 In Washington, a "violent offense" is defined as any class A felony or attempt to commit a class A felony. RCW 9.94A.030(33). That definition obviously encompasses many crimes that do not result in injury to the victim. Similarly, Black's Law Dictionary, at 1408 (5th ed. 1979) defines "violence” as:
Unjust or unwarranted exercise of force, usually with the accompaniment of vehemence, outrage or fury. . . . Physical force unlawfully exercised; . . . The exertion of any physical force so as to injure, damage or abuse.
(Citations omitted.) That definition also encompasses many acts that do not result in injury.
More importantly, the California statute Lord violated does not define "violence” as necessarily including injury. Lord pleaded guilty to a violation of section 236 of the California Penal Code. That section defines the general crime of false imprisonment. Section 237 then goes on to define felony false imprisonment as imprisonment "effected by violence, menace, fraud, or deceit". "Violence" is defined as "the exercise of physical force used to restrain over and above the force reasonably necessary to effect such restraint." California Jury Instructions — Criminal § 9.60, at 512 (5th ed. 1988). Thus, under the California law applicable to Lord's conviction, injury is not an inherent part of "violence".
The State also elicited on cross examination the fact that the victim of the unlawful imprisonment was a teenager. Contrary to the majority's conclusion, that information was also prejudicial. Prior to the cross examination of Leslie Lord, the jury knew only that the defendant had been convicted of unlawful imprisonment of a woman. After the cross examination, the jury knew the victim was a teenager, was injured and hospitalized, and that the *932incident involved the defendant giving the victim a ride in his car. Thus the improper cross examination elicited information that highlighted the similarities between the unlawful imprisonment conviction and the murder of Tracy Parker. It is the similarity between the improperly elicited evidence and the murder of Parker that creates prejudice. Cf. State v. Pam, 98 Wn.2d 748, 761-62, 659 P.2d 454 (1983) (Utter, J., concurring in the result) (prejudice arising from introduction of prior crimes under ER 609 is great where the prior crime is similar to the charged crime); State v. Bowen, 48 Wn. App. 187, 195, 738 P.2d 316 (1987) (same).
The State also elicited evidence that Lord violated the conditions of his probation and attempted to escape from the police. The majority argues any prejudice arising from that evidence is "insignificant given that the jury was properly aware of both of Lord's prior convictions for violent crimes." Majority opinion, at 894. Taken to its logical conclusion, the majority's argument would mean almost no error would ever prejudice a defendant with a violent past. Indeed, the next logical step in the majority's analysis is to conclude that the prejudice would be insignificant given that the jury was already properly aware of the circumstances of the Parker murder. After all, how prejudicial is a probation violation in light of a conviction for aggravated first degree murder? Such a decision would, of course, make a mockery of the reasoning in Bartholomew I and II. It would also ignore our responsibility to assure that any person sentenced to death is afforded due process.
Furthermore the evidence of the alleged probation violation is exactly the kind of unreliable evidence warned against in Bartholomew II. The only evidence of any probation violation came out in the cross examination of Leslie. The following exchange shows how unreliable that evidence is.
Q: So [the defendant] did not obey the Court's order of probation after he was placed on probation for the crime of murder in the second degree?
A: Well, I don't know really if he did or not.
Q: Did he have to spend 30 days in jail because he did not obey the probation rules for this homicide?
*933A: I wouldn't know for sure about that. I know he was in jail there for — I don't remember whether it was 30 days or 20 days, but he was, and I don't recall what it was for.
Report of Proceedings vol. L, at 7734-35. The State presented no other evidence that Lord was ever found guilty of a probation violation. Thus the evidence of that alleged violation lacks the reliability necessary to make it admissible in a capital sentencing proceeding. See Bartholomew II, 101 Wn.2d at 640-41.
As pointed out earlier, Bartholomew creates a presumption that rebuttal evidence is inadmissible. The State can overcome that presumption by proving beyond a reasonable doubt that the evidence's rebuttal value outweighs its prejudicial effect. Where the evidence is as unreliable as is the evidence of the alleged probation violation, the State can never meet that burden.
There is also no reliable evidence of Lord's alleged attempt to flee the police. During the course of cross examination, Leslie testified his son left the scene of the false imprisonment crime and that the police chased his son. Report of Proceedings vol. L, at 7739. That testimony was based on Leslie's recollection of police reports he had read "years ago" and which he acknowledged he could not accurately remember. Report of Proceedings vol. L, at 7737. Leslie never discussed the incident with his son. Report of Proceedings vol. L, at 7738. The only evidence of Lord's attempted flight was the incomplete hearsay recollections of Leslie. That evidence is surely not reliable enough to have any rebuttal value in a capital case.
The State also improperly elicited information concerning Lord's second degree murder conviction. The cross examination improperly brought out inflammatory facts about the details of the murder. There was no reliable corroborating evidence of any of those facts, and many were based on hearsay.43 Those facts were not relevant to *934rebut any mitigating evidence. Therefore the court erred in allowing that cross examination.
The majority concludes that none of the challenged evidence discussed above was unduly prejudicial. The prosecutor's closing argument belies that conclusion. In her closing argument the prosecutor emphasized all of the erroneously admitted evidence. She paid particular attention to the facts surrounding Lord's two previous convictions, and made powerful arguments that could not help but play on the jurors' emotions.44 She emphasized that the victim in the false imprisonment case "was a teenager, just like Tracy Parker." Report of Proceedings vol. LI, at 7883. Thus all of the improperly elicited information was used to Lord's prejudice.
Improperly admitting the evidence allowed the State to argue nonstatutory aggravating factors to the jury. The danger in allowing such evidence is that it
opens too wide a door for the influence of arbitrary factors on the sentencing determination.
Bartholomew I, 98 Wn.2d at 195 (quoting Henry v. Wainwright, 661 F.2d 56, 59 (5th Cir. 1981)). Allowing the jury to consider nonstatutory aggravating factors also defeats the constitutional mandate of channeled jury discretion. 98 Wn.2d at 195. In Bartholomew I, this court decided those dangers dictate that the court limit the evidence put before the jury. 98 Wn.2d at 196. Specifically, this court held:
Information relating to defendant's criminal past should therefore be limited to his record of convictions.
98 Wn.2d at 197. The evidence admitted in this case goes beyond the scope of Bartholomew I and does not properly rebut any mitigating evidence. In concluding the evidence was properly admitted, the majority ignores Bartholomew II's warning that
[the court] do[es] not intend . . . that the prosecution be permitted to produce any evidence it cares to so long as it *935points to some element of rebuttal no matter how slight or incidental.
101 Wn.2d at 643 (quoting Bartholomew I, at 198). Any rebuttal value the challenged evidence has is certainly slight and incidental. Therefore introduction of that evidence was error, and we should vacate Lord's sentence and remand for a new sentencing proceeding untainted by the improperly admitted evidence.
In Bartholomew II, we deemed it necessary under both the eighth amendment of the federal constitution and article 1, section 14 of this state's constitution to channel the jury's discretion at the sentencing phase of a capital case. In that case we recognized the importance of limiting the admission of nonstatutory aggravating factors at the sentencing stage. But now the majority's approach in effect opens the door for nonstatutory aggravating factors during the sentencing phase. The majority's generous notion of what constitutes rebuttal evidence will allow prosecutors to get in just about any nonstatutory aggravating factors during the sentencing phase, regardless of their reliability, on the pretext that it rebuts mitigating evidence. The majority also fails to take seriously the prejudicial effect of the testimony that was admitted in this case. Thus, the majority's approach will significantly undermine the court's efforts to channel jury discretion in the sentencing phase of capital cases. That approach is at odds with our holding in Bartholomew II, and infringes on the state and federal constitutional rights of capital defendants.
Our review of United States Supreme Court cases in Bartholomew II indicated that the strictures of the Eighth Amendment require that the jury's consideration of aggravating factors be limited at the sentencing stage of a capital case. Bartholomew II, 101 Wn.2d at 635-39. The Court has long allowed the defendant the opportunity to introduce any relevant mitigating factors. See California v. Brown, 479 U.S. 538, 541, 93 L. Ed. 2d 934, 107 S. Ct. 837 (1987); Lockett v. Ohio, 438 U.S. 586, 604, 57 L. Ed. *9362d 973, 98 S. Ct. 2954, 2964 (1978). The Court, however, has taken a more stringent view of what kinds of aggravating evidence can be admitted. As the Court wrote in Gregg v. Georgia, 428 U.S. 153, 203-04, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976):
We think that the Georgia court wisely has chosen not to impose unnecessary restrictions on the evidence that can be offered at such a hearing and to approve open and far-ranging argument. ... So long as the evidence introduced and the arguments made at the presentence hearing do not prejudice a defendant, it is preferable not to impose restrictions. We think it desirable for the jury to have as much information before it as possible when it makes the sentencing decision.
(Italics mine.) See also California v. Ramos, 463 U.S. 992, 1009 n.23, 77 L. Ed. 2d 1171, 1186, 103 S. Ct. 3446, 3457 (1983). Barefoot v. Estelle, 463 U.S. 880, 926, 77 L. Ed. 2d 1090, 1125, 103 S. Ct. 3383, 3411 (1983); Zant v. Stephens, 462 U.S. 862, 886, 77 L. Ed. 2d 235, 256, 103 S. Ct. 2733, 2748 (1983). As the court in Bartholomew II noted, this "prejudice" concept subjects evidence submitted by the prosecution to a more rigorous standard than that advanced by the defendant at the sentencing phase of a capital trial. Bartholomew II, 101 Wn.2d at 637. The Bartholomew II court also noted that the provisions of article 1, sections 3 (due process) and 14 (cruel punishment) of the Washington State Constitution limit the range of evidence a prosecutor may introduce. 101 Wn.2d at 639. Therefore, the majority's approach to the Bartholomew test infringes on the federal and state constitutional rights of capital defendants.
B. Cross Examination of Lord's Allocution Statement.
Prior to closing argument, Lord exercised his common law right to allocution. The purpose of allocution is to provide the defendant an opportunity to plead for leniency. See State v. Happy, 94 Wn.2d 791, 793, 620 P.2d 97 (1980); Marshall, Lights, Camera, Allocution: Contemporary Relevance or Director's Dream?, 62 Tul. L. Rev. 207, 211 (1987). Allocution assures the sentencer will consider the defendant's position on sentencing prior to pronouncing *937that sentence. State v. Peterson, 97 Wn.2d 864, 868, 651 P.2d 211 (1982).45
In this case, as the majority correctly points out, Lord went beyond the bounds of allocution. He engaged in more than just a plea for mercy. Nonetheless, the court still erred in allowing the State to cross-examine Lord.
By definition, allocution is an exchange between the defendant and the sentencer. Allocution does not involve the prosecutor. Neither the majority nor the State cite any case that holds there is a right to cross-examine a defendant after allocution. Instead, each cites language in State v. Mak, 105 Wn.2d 692, 718 P.2d 407, cert. denied, 479 U.S. 995 (1986), sentence vacated on writ of habeas corpus sub nom. Mak v. Blodgett, 754 F. Supp. 1490 (W.D. Wash. 1991).
In Mak, the trial court rejected the defendant's request to make a statement to the jury following closing argument.46 The language cited by the majority and the State merely holds a defendant may not make a statement to the jury after closing argument. Thus, Mak stands for the proposition the State must have an opportunity to rebut any statement the defendant makes. That rebuttal does not, however, have to take the form of cross examination. There is simply no language in Mak that says there is a right to cross-examine the defendant on his allocution statements.
State v. Jeffries, 105 Wn.2d 398, 717 P.2d 722, cert. denied, 479 U.S. 922 (1986) illustrates the proper manner for dealing with a defendant's allocution. In Jeffries, the defendant did not testify during either the guilt or *938penalty phases of the trial. He did, however, exercise his right to allocution. In closing argument the prosecutor referred to defendant's allocution:
Well, you have heard the Defendant in a situation where he does not have to take an oath and in a situation that I can't cross-examine him and his statement, I submit is one that is insulting to the intelligence.
105 Wn.2d at 415. The prosecutor used the closing argument to rebut the allocution.47
That is the proper way to address allocution.
The essence of the majority's argument is that the State must be allowed to cross-examine in order to rebut "testimony" offered by Lord during his allocution. Cross examination is not, however, necessary to rebut the allocution. Instead, the prosecutor could object that the statement is beyond the bounds of proper allocution. During closing argument the prosecutor may remind the jury of any properly introduced evidence that rebuts the defendant's statements. The prosecutor may make reasonable inferences and argument related to the allocution. The prosecutor may also, as did the prosecutor in Jeffries, remind the jury that the defendant's statement is unsworn and not subject to cross examination. In that way, the prosecutor can sufficiently rebut any of the defendant's statements.
The rule the majority adopts is a trap for the unwary defendant. The majority places the burden solely on the defendant, and in so doing the majority fails to protect that defendant's rights. A better rule would be to require the prosecutor to object whenever he or she believes the defendant has gone beyond the proper bounds of allocution. That rule would protect both the State's and the defendant's interests. A proper objection would protect the State's interest in not having the defendant put unsworn testimony before the jury. It would also allow the court to *939protect the defendant's right to plead for mercy, by assuring the defendant does not go beyond the proper bounds of allocution.
The cross examination of Lord violated his right to due process, and his right to remain silent. Therefore, I would vacate the sentence on this ground as well.
C. Proportionality.
The majority holds Lord's sentence is proportionate to the sentences imposed on defendants in similar cases. I have previously discussed the difficulties in conducting proportionality review under our state statute. See State v. Campbell, 103 Wn.2d 1, 42, 691 P.2d 929 (1984) (Utter, J., concurring in part/dissenting in part), cert. denied, 471 U.S. 1094 (1985); State v. Jeffries, 105 Wn.2d 398, 435-37, 717 P.2d 722 (.Jeffries I), cert. denied, 479 U.S. 922 (1986). The majority's attempt to clarify proportionality review does not eliminate the difficulty. I refer the court to my earlier opinions for farther discussion of this issue.48
The majority correctly points out that proportionality review must include all cases where the defendant was convicted of aggravated murder, whether or not the State sought the death penalty. RCW 10.95.120, .130; majority opinion, at 908 n.27. Our goal is to ascertain whether the "sentence of death is excessive or disproportionate to the penalty imposed in similar cases". RCW 10.95.130(2)(b). The sentence is excessive and disproportionate if it has not "generally been imposed in similar cases". (Italics mine.) In re Jeffries, 114 Wn.2d 485, 490, 789 P.2d 731 (1990) (Jeffries II); State v. Rupe, 108 Wn.2d 734, 767, 743 P.2d 210 (1987), cert. denied, 486 U.S. 1061 (1988). A sentence is not "generally" imposed unless it is imposed in at least 50 percent of the similar cases. Jeffries I, 105 Wn.2d at 437 (Utter, J., dissenting).
The majority focuses on those cases in which the death penalty was actually imposed. It expends precious little *940ink in describing a few similar cases in which the death penalty was either not imposed or not sought by the prosecutor. It does not list all of the similar cases. When the majority does mention such cases, it does not describe the aggravating factors and mitigating factors in those cases. It does not describe the defendant's prior convictions in those cases. It superficially distinguishes those cases from this one without meaningfully comparing all of the relevant factors in those cases to the ones in this case. The majority then concludes that Lord's sentence is proportionate, because, in the majority's view, the death penalty has been imposed in similar cases.
This analysis ignores both the plain language of the statute and the basic purpose of proportionality review. Our statute requires us to consider all cases in which the defendant was found guilty of aggravated first degree murder, "regardless of whether [the death penalty] was imposed or executed". RCW 10.95.130(2)(b). Our task is not to determine whether the death penalty has ever been imposed in a similar case, but to determine whether it is generally imposed in similar cases.
To perform that task, we must compare the facts and circumstances of Lord's crime with those of all other similar aggravated first degree murder convictions. This comparison involves more than just a simple matching of aggravating factors. Jeffries II, 114 Wn.2d at 490. Nonetheless, our cases make it clear that similarity in aggravating factors is an element of proportionality review. See, e.g., Jeffries II, 114 Wn.2d at 491.
Because we must compare aggravating factors, I am compelled to briefly address whether there is sufficient evidence to support the jury's determination that Lord committed the murder in the course or furtherance of the crime of kidnapping. The majority concludes that, because there is sufficient evidence to support the finding of rape, it is unnecessary to address the sufficiency of the evidence of kidnapping. This conclusion is correct with regard to whether there is sufficient evidence to support the jury's verdict of guilt. With regard to proportionality review, *941however, it would be fundamentally unfair to use an aggravating factor in determining the universe of similar cases if there was insufficient evidence to support that factor. Because I believe there is insufficient evidence to support a finding of kidnapping, I would not consider that aggravating factor in selecting the universe of similar cases.
The test for determining whether there is sufficient evidence to justify a finding of guilt beyond a reasonable doubt is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 220-21, 616 P.2d 628 (1980). In this case, there is insufficient evidence to meet the Green test.
The State's theory is that Lord lured Parker to Kirk Lord's workshop under the pretense of employing her to finish cabinets. The State argues that Lord "deceived" Parker into going to the workshop, and therefore kidnapped her by deception. To support that theory the State presented evidence that Lord offered Parker a job in June 1986. The State also presented evidence that Lord frequently gave Parker rides home. Finally, the State presented evidence that Lord made two phone calls from the Frye residence on the day Parker disappeared. The State theorized those calls were to assure that no one was at the workshop, and that no one would be looking for Lord.
The record is insufficient to establish the State's speculative theory. The first of Lord's calls was placed to his girl friend while Parker was almost a mile away from the Frye house. There is nothing to indicate Lord knew Parker was out riding her horse, or that she would be arriving at the Frye house in the near future. Thus there is nothing in the record to support the speculative theory that Lord placed the call to assure no one would be looking for him.
There is also nothing to support the speculation that Lord lured Parker to the workshop with a job offer. The *942original offer was made 6 months earlier, and there is no evidence to indicate Lord ever renewed the offer. Therefore, the State's evidence is insufficient to support the kidnapping charge.
Because there is insufficient evidence to support the finding that the murder was committed during the course or furtherance of kidnapping, we must disregard that finding. Therefore, we need only consider the following three aggravating factors: the murder was committed to conceal commission of a crime, to conceal the identity of the perpetrator of a crime, and in the course or furtherance of the crime of rape.
We must do more than just look at aggravating factors, however. We also must examine any relevant mitigating factors. Jeffries II, 114 Wn.2d at 490. Lord put on mitigating evidence that he has an antisocial personality disorder, he has substance abuse problems with alcohol and marijuana, and his family loves him. He also presented evidence that he is a good carpenter.
In performing proportionality review, we must also take into consideration the defendant's criminal record. Lord has two prior convictions, including one for a second degree murder he committed when he was 14 years old.
A review of trial judge reports and published cases reveals 24 cases in which the defendant was convicted of aggravated murder with rape as an aggravating factor. Juries imposed death sentences in only three of those cases: Westley Dodd (Clark Cy. causes 89-1-01133-6, 89-1-01134-4); Michael Furman (Kitsap Cy. cause 89-1-00304-8); and Lord. Because this court has yet to review either Dodd's or Furman's conviction and sentence, those cases have little value for proportionality review purposes. Nonetheless, it is worth noting that Dodd pleaded guilty to brutally raping and murdering three children. The facts of Dodd's convictions for three counts of aggravated murder do not seem similar to Lord's case.
Furman's case also seems dissimilar. The jury found five aggravating factors in Furman's case, as opposed to three in Lord's case. Three of the factors were the same in *943both cases, but the jury in Furman’s case also found that he committed the crime in the course or furtherance of burglary and robbery. Furman also had more prior convictions than Lord, albeit mostly for property crimes.
In addition to Dodd, Furman, and Lord, there are six other rape/murder cases in which the jury found the existence of at least three aggravating factors. Of those six, we should consider five as being similar to Lord's case.
A jury convicted David Duhaime of premeditated murder in the first degree for raping and murdering a 17-year-old girl. State v. Duhaime, 29 Wn. App. 842, 631 P.2d 964 (1981), review denied, 97 Wn.2d 1009 (1982).49 The jury also found Duhaime guilty of rape, kidnapping, and robbery, all in the first degree. Duhaime "brutally stabbed" his victim to death and left her body lying in the snow. There is no mention in the case of any mitigating factors. The jury did not impose the death penalty.
James Dykgraaf tied his victim up, raped her, strangled her, and shot her. Report of the Trial Judge, Clark Cy. cause 86-1-00111-5. The jury found four aggravating circumstances: the murder was committed to conceal the identity of the perpetrator, and the murder was committed in the course or furtherance of burglary, rape and robbery. Dykgraaf presented mitigating evidence that he has a "mixed personality disorder" and that his father was a "domineering" man who had raped Dykgraaf's sisters. Dykgraaf has one prior conviction for first degree assault with intent to rape. Thus, like Lord, Dykgraaf has a history of violence toward women. The jury did not impose the death penalty.
Russell Stenger kidnapped a 23-year-old jogger. Report of the Trial Judge, Clark Cy. cause 87-1-00951-3. He took her to two different locations, and raped her repeatedly at each. Stenger then tied his victim to a tree and shot her. He has three prior felony convictions. The jury found three aggravating factors. There was no credible evidence of mitigating factors. The trial judge described the killing *944as "most heinous". The State did not seek the death penalty.
Ronald Thomas "hog-tied" his victim to her bed, raped her and strangled her. Report of the Trial Judge, King Cy. cause 86-1-04723-5. The jury found three aggravating factors: the murder was committed to conceal the identity of the perpetrator and the murder was committed in the course or furtherance of rape and robbery. There was no credible evidence of mitigating factors. Thomas has three prior convictions, including one for armed robbery. The State did not seek the death penalty.
Daniel Yates raped and murdered a 13-year-old girl. Report of the Trial Judge, Kitsap Cy. cause 87-1-00444-7. The jury found Yates guilty of three counts of first degree rape and two counts of attempted first degree murder. Yates has five priors, including one for armed robbery. The jury found the same three aggravating factors as in Lord's case, plus the additional factor that the murder was committed in the course or furtherance of kidnapping. There was no credible evidence of mitigating factors. The jury did not impose the death penalty.
The above cases have similar numbers and types of aggravating factors. Proportionality review requires that we do more than just match aggravating factors, however. In re Jeffries, 114 Wn.2d 485, 490, 789 P.2d 731 (1990). We must also examine the facts of the crime and the characteristics of the defendant. Thus there are several other cases that we should consider as being similar for purposes of proportionality review.
Bruce Bushey beat, raped, and strangled a woman he had met a few hours before the murder. Report of the Trial Judge, King Cy. cause 84-1-02746-7. His prior conviction for second degree rape establishes a pattern of violence against women. There was no credible evidence of mitigating factors. The jury did not impose the death penalty.
Kenneth Hovland "brutally" raped and sodomized a 16-year-old girl. Report of the Trial Judge, Snohomish Cy. cause 81-1-00678-1. He stabbed her repeatedly and suffo*945cated her by forcing her face into mud. The jury found two aggravating factors: the murder was committed in the course or furtherance of rape and in the course or furtherance of kidnapping. Hovland has two prior convictions for nonviolent offenses. There was no credible evidence of mitigating factors. The State did not seek the death penalty.
Michael Ihde raped and strangled a 67-year-old retired nurse. Report of the Trial Judge, Clark Cy. cause 87-1-00126-1. He raped her vaginally, orally, and anally. Ihde has four prior felony convictions, including one for rape and one for assault with intent to kill. The jury found two aggravating factors: the murder was committed in the course or furtherance of rape and in the course or furtherance of robbery. There was no credible evidence of mitigating factors. The State did not seek the death penalty.
Sherwood Knight raped and strangled his victim. Report of the Trial Judge, King County cause 86-1-01678-0. The jury found the aggravating factors that the murder was committed in the course or furtherance of rape and in the course or furtherance of robbery. Knight has six prior convictions, including three felonies. There was no credible evidence of mitigating circumstances. The State did not seek the death penalty.
A review of the cases indicates the death penalty is not generally imposed in cases similar to Lord's. There is no principled way to distinguish Lord's case from those cases in which the death penalty was not imposed. Therefore Lord's sentence is excessive and disproportionate. I would vacate that sentence.
Conclusion
The trial court erred both in admitting the summary chart and in sending the chart into the jury room. The chart inaccurately summarizes the evidence by converting the expert's speculative and inconclusive testimony into conclusory facts. In so doing the chart unfairly emphasizes the State's interpretation of that testimony and *946draws conclusions for the jury. Admission of the chart violated Lord's right to due process. Therefore, I would reverse the finding of guilt.
Even if the finding of guilt is not reversed, the errors in the sentencing phase require us to vacate the sentence. The trial court erred in allowing the State to elicit the facts underlying Lord's previous convictions. That evidence is prejudicial and does not properly rebut any mitigating evidence offered by Lord. The trial court also erred in allowing the prosecutor to cross-examine Lord after Lord exercised his right to allocution. Allocution is not subject to cross examination. Instead, the prosecutor should have objected to any alleged violation of the limits of allocution. Absent such objection, the prosecutor cannot complain that Lord exceeded the proper bounds of allocution.
Finally, I dissent because Lord's sentence of death is disproportionate to the sentences imposed on other defendants who committed similar crimes. A sentence of death is disproportionate unless it is generally imposed in similar cases. To be generally imposed, a sentence must be imposed in at least 50 percent of the cases. My analysis reveals nine rape/murder cases that are similar to Lord's case. None of the defendants in those nine other cases was sentenced to death, despite the fact that in eight of those cases the trial judge determined there was no credible mitigating evidence. Therefore, I would vacate Lord's sentence as being disproportionate.
Smith, J., concurs with Utter, J.
Reconsideration denied March 17, 1992.
My use of the phrase "summary chart" refers to exhibit 143. Exhibit 143 is an 8- by 4-foot chart that purports to summarize the testimony of several experts. Although I believe there are problems with both exhibits 141 and 143,1 will directly address only those problems related to 143.
State v. Bartholomew, 98 Wn.2d 173, 654 P.2d 1170 (1982) (Bartholomew I), State's cert. granted and remanded, 463 U.S. 1203, defendant's cert. denied, 463 U.S. 1212 (1983) was vacated by the United States Supreme Court and the case remanded for reconsideration.
Report of Proceedings vol. XXIII, at 3815.
Report of Proceedings vol. XXIII, at 3905.
Report of Proceedings vol. XXHI, at 3920; vol. XXX, at 4914.
Report of Proceedings vol. XXXVIII, at 6072.
Report of Proceedings vol. XXXVI, at 5922-25.
Accord, United States v. Abbas, supra; United States v. Espinosa, 771 F.2d 1382 (10th Cir. 1985); Pierce v. Ramsey Winch Co., 753 F.2d 416 (5th Cir. 1985); United States v. Scales, 594 F.2d 558 (6th Cir.), cert. denied, 441 U.S. 946 (1979); United States v. Conlin, 551 F.2d 534 (2d Cir.), cert. denied, 434 U.S. 831 (1977).
The following exchange illustrates this problem.
"Q: To begin with [paint] type No. 1, which did you assign into that classification? Any of these that we've just talked about?'1
"A: Type No. 1 I assigned from EO 1. Those are the sweepings from the workshop, AK 3, that’s the fence post, and also N 06, which is the debris from Tracy Parker's leg."
"Q: When did you microscopically look at paint samples from AK 3, which is State's Proposed Exhibit 13 IB, as in baker?" Report of Proceedings vol. XXXVI, at 5847.
See, e.g., Report of Proceedings vol. XXXV, at 5757 (paint chips were "similar"); 5760 (white paint chips "could have" a common source); vol. XXXVI, at 5841 (green paint chips are "similar”); 5858 (same); 5909 (yellow paint chips "could have come from the same source"); 5925 (orange fibers "could have come from the blanket"); vol. XXXVII, at 5944 (pale grayish brown fibers "could share a common origin").
The majority insists that this court should only apply greater scrutiny to the sentencing phase of a capital trial. As the Supreme Court recently stated in Murray v. Giarratano, 492 U.S. 1, 8, 106 L. Ed. 2d 1, 109 S. Ct. 2765, 2770 (1989): "We have recognized on more than one occasion that the Constitution places special constraints on the procedures used to convict an accused of a capital offense and sentence him to death." In particular, the Court in Beck v. Alabama, 447 U.S. 625, 65 L. Ed. 2d 392, 100 S. Ct. 2382 (1980) recognized the importance of heightened judicial scrutiny of both the guilt and sentencing phases of a capital case. The Court in Beck invalidated an Alabama rule that prohibited an instruction on a lesser included offense in the guilt phase of a capital trial. After noting that there is a significant constitutional difference between the death penalty and lesser punishments, the Court wrote:
To insure that the death penalty is indeed imposed on the basis of "reason rather than caprice or emotion," we have invalidated procedural rules that tended to diminish the reliability of the sentencing determination. The same reasoning must apply to rules that diminish the reliability of the guilt determination.
(Footnote omitted.) 447 U.S. at 638. Such heightened scrutiny is appropriate during the guilt phase of a capital case, because procedural irregularities during the guilt phase can unfairly expose a defendant to the death penalty. Recently, the Kentucky Supreme Court recognized the higher standard of review at both the guilt and penalty phases of cases where the death penalty was imposed. Cosby v. Commonwealth, 776 S.W.2d 367, 369 (Ky. 1989).
Moreover, this court itself has recognized that the guilt phase of capital cases is qualitatively different from the guilt phase of noncapital cases. For example, in State v. Jeffries, 105 Wn.2d 398, 418, 717 P.2d 722, cert. denied, 479 U.S. 922 (1986), this cotut took a liberal approach to construing procedural rules in the guilt phase of a capital case. In Jeffries, this court allowed the defendant to challenge jury instructions even though no objection to them was made at trial. The usual rule is that this court does not review an issue where the proper objection is not made at trial. State v. Theroff, 95 Wn.2d 385, 622 P.2d 1240 (1980). Thus, contrary to the majority's assertion, the guilt phase of a capital case and the guilt phase of a noncapital case are not treated identically.
Cf. Caldwell v. Mississippi, 472 U.S. 320, 329, 86 L. Ed. 2d 231, 105 S. Ct. 2633 (1985) .("the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination").
I will follow the majority's terminology and refer to the defendant as "Lord" and to all other family members by their first name.
Even if it were, the testimony here went much further. Leslie Lord testified not just that the victim was injured, but that she was hospitalized as a result of her injuries. Report of Proceedings vol. L, at 7737.
"Q: How was she murdered?
"A: She was shot.
"Q: From one gun or two guns?
"A: Well, they said there was two guns involved.
"Q: Two separate guns she was shot with; isn't that correct, Mr. Lord?
"A: That's what they said, yes." Report of Proceedings vol. L, at 7731.
I do not mean to imply nor do I believe there is anything improper with the manner in which the prosecutor gave her closing argument.
The court in State v. Peterson, supra, interpreted the right of allocution under former CrR 7.1. Nonetheless, the court's reasoning applies equally to the common law right of allocution.
The opinion in Mak does not specifically state that defendant's request was to make a statement after closing argument. Such a conclusion is inevitable, however, from the fact Mak refused an opportunity to make a statement "prior to closing arguments". 105 Wn.2d at 729. Additionally, this court's observation that Mak's requested statement would be "unanswerable by argument", 105 Wn.2d at 729, only makes sense if Mak's request was to make a statement after argument.
I note that in Jeffries we did not comment on the prosecutor's assumption that he had no right to cross-examine after allocution.
See also Comment, Washington's Comparative Proportionality Review: Toward Effective Appellate Review of Death Penalty Cases Under the Washington State Constitution, 64 Wash. L. Rev. 111, 121 (1989).
Because Duhaime's conviction occurred prior to May 14, 1981, the trial judge was not required to submit a report to this court. See RCW 10.95.120.