Can a defendant in a capital case waive his general right of appellate review? This case is unique because the defendant, Westley Allan Dodd, wants to forgo appellate review and be executed as quickly as possible. We hold that the defendant in a capital case can waive his general right of review, but cannot waive statutory review of his death sentence. We affirm Dodd's death sentence.
Issues
1. May a defendant in a capital case waive his right of general review?
2. Whether the jury properly imposed a sentence of death in Dodd's case.
Facts
On September 4,1989, the bodies of 11-year-old Cole Neer and 10-year-old Billy Neer were discovered in David Douglas Park, Vancouver. Both boys sustained multiple stab wounds. Billy was fully clothed; Cole's pants were pulled down. Cole was dead when discovered. Billy died en route to the hospital.
*5On November 1, 1989, the nude body of a 4-year-old boy was discovered near Vancouver Lake. The body was that of Lee Iseli, of Portland, reported missing on October 29. Members of the Clark County Sheriff's Office, the Vancouver police and the Portland police formed a "task force" to investigate the case.
On November 13, 1989, the Liberty Theatre in Camas reported that an adult male tried to abduct James Kirk, a 6-year-old boy, from the theater. The man carried Kirk from the men's bathroom out of the theater, but Kirk was able to break free. Camas police arrested the abductor and brought him to the police department where he was identified as Westley Allan Dodd.
Police informed Dodd of his right to an attorney. They also made a phone and a fist of attorneys available to him. Dodd did not call an attorney or request an attorney during the booking process.
Camas police discovered that Dodd had a history of sexual offenses involving young male victims, lived near David Douglas Park, and worked near Vancouver Lake. They also noted that Kirk was close in age to and resembled Lee Iseli. Camas police called officers investigating the Neer and Iseli cases.
Detectives Trimble and Jensen spoke with Dodd in the Camas police chief's office from 10:45 p.m. November 13 to 2:45 a.m. November 14. The first interview lasted from 10:45 p.m. to 1 a.m. The second interview lasted from 1 a.m. to 2:45 a.m.
Trimble advised Dodd of his Miranda rights at the beginning of the first interview. Dodd appeared alert and intelligent. He said he understood his rights, did not want an attorney, and was willing to speak with the police. The officers asked Dodd about the Neer and Iseli murders. Dodd denied any knowledge of the murders. Police asked Dodd if they could search his house and car. Dodd replied "I think I'd probably talk to an attorney before I let you do that." Detective Jensen asked Dodd if he minded speaking with the officers, if he felt better talking about "the whole thing." *6Dodd replied he felt better talking to the officers and wanted to continue the interview. Dodd then admitted that he abducted Kirk and killed the Neer boys and Lee Iseli. Dodd told the officers they would find incriminating evidence in his apartment. Dodd agreed to do a second, taped interview.
At the beginning of the second interview, Officer Trimble read Dodd his Miranda rights. Dodd stated that he understood those rights, was willing to talk to the officers, and that he knew his statements were being recorded. Trimble and Dodd discussed the earlier reference to an attorney. Dodd affirmed that he never told the officers he did not want to speak with them and that he said talking to them would help. Exhibit 114, at 3. Dodd again summarized how he murdered the Neers and Lee Iseli, and kidnapped James Kirk. Exhibit 114, at 5-26.
Police sought and executed two warrants, from different judges, to search Dodd's house and car. Officers seized a briefcase from Dodd's apartment which contained Lee Iseli's underwear; a photo album of pictures Dodd took of Iseli before and after his death, with captions written by Dodd; and Dodd's "diary".
The first section of the diary, "1968 to 1989", recounts Dodd's sexual history.
"Incident 1" describes the circumstances of the Neer boys' deaths. From September 2 to September 4, 1989, Dodd spent hours, or entire days, surveying David Douglas Park to find "ideal" crime sites. He considered which times were best for "hunting", appraised possible victims, and considered how he could rape and murder children without being apprehended. Dodd also considered what weapons to use, obtained those weapons, and brought them to the park.
On September 4, he saw two boys who were the "proper age" playing on bikes in the park. He approached the Neer brothers, ordered the boys to come with him, and led them to a secluded area of the park. He told the boys to bring their bikes, because he did not want anyone to see the abandoned bikes and begin to search for the boys. In a *7wooded area of the park, Dodd tied Billy's and Cole's wrists together, so that the boys faced him, and he raped Cole while Billy cried. Dodd then cut the boys loose, made them kneel down, and he tried to rape Cole again.
Dodd told the boys he wanted "one more thing." He took a knife from under his pant leg and stabbed Billy "in the gut." As Cole, who was still kneeling, started to rise, Dodd stabbed him in the side and chest. Despite his wounds, Billy tried to run away. Dodd pursued him and, as Billy repeated "I'm sorry, I'm sorry", Dodd fatally stabbed him. Dodd checked the area for incriminating evidence, made sure that Cole was dead, and then left the park. The next day Dodd put the knife in a manila envelope and threw the envelope in a dumpster.
"Incident 2 Rough Draft" and "Incident 2" describe how Dodd "hunted", raped, and killed Lee Iseli. Dodd described various means he might employ to murder victims, including "hang by neck"; strangle "with hands"; and strangle "by rope". He described how he would restrain victims, tying their "hands loosely over [their] head" and tying them down at the chest, knees, abdomen, and ankles. He considered the advantages of kidnapping a boy, "so I feel more comfortable and can take more time for various types of sex before killing the child." He expressed the desire to hang a nude 6-year-old victim and take pictures of the body. Dodd assessed possible crime sites, using maps and driving around the Portland area, and he bought a camera.
On October 29, around noon, Dodd went to a school playground he surveyed the preceding day. He saw a group of boys playing football and, away from the group, a younger boy playing alone. Dodd approached 4-year-old Lee Iseli and asked if he wanted to "have some fun and make some money." When the boy hesitated and seemed unsure, Dodd took his hand and led him from the playground to Dodd's car. Lee Iseli began crying in the car, but Dodd held Lee's hand and promised not to hurt him.
When they arrived at Dodd's apartment, at 1:30 p.m., Dodd noted the circumstances were "perfect": his neighbor *8and landlord were out. Dodd told Lee to take off his clothes and, when the boy protested, began undressing him. Dodd tied Lee to a bed: the boy's hands over his head, restrained at the chest, knees, abdomen, and ankles; then took photographs of the nude boy. During the day and evening of October 29, and the morning of October 30, Dodd raped and strangled Iseli. The torturous details of the rapes and murder are not relevant to reaching a decision in this case. When Dodd returned from work the afternoon of October 30 he burned Iseli's clothing; put Iseli's corpse in a trash bag; and dumped "the garbage" near Vancouver Lake.
"Incident 3" concerned events that occurred before the Kirk abduction.
The prosecutor, in separate informations, charged Dodd with one count of aggravated murder in the first degree of Lee Iseli; one count of aggravated murder in the first degree of Cole Neer; one count of aggravated murder in the first degree of William Neer; one count of attempted murder in the first degree of James Kirk; and one count of kidnapping in the first degree of James Kirk. Dodd pleaded not guilty to all charges.
In May 1990, Dodd moved to suppress his confession and the evidence seized in his home pursuant to warrants 174 and 175. The court concluded that the confession was voluntary and the evidence properly seized from Dodd's home. It reasoned that even if the confession evidence in warrant 174 was discounted, other evidence, particularly Dodd's move to Vancouver at the time of the events; the proximity of his home and workplace to crime sites; and a neighbor's statement that he saw a boy who resembled Lee Iseli in Dodd's apartment at the time of the Iseli murder, wearing only Dodd's undershirt; provided substantial evidence of probable cause for search warrants to examine Dodd's apartment and car.
In June 1990, after the adverse evidentiary rulings, Dodd changed his plea to guilty. Dr. Maletzky assessed Dodd's competence to plead guilty. The doctor determined that Dodd *9was "competent to aid and assist in his own defense and is competent to enter a plea." The court also closely questioned Dodd and determined that he had: discussed the decision with his attorneys; reviewed with them the plea forms; and he understood the consequences of a guilty plea. The court also reviewed the terms of the plea with Dodd. Dodd's counsel believed Dodd competent to enter a guilty plea. Dodd pleaded guilty to the aggravated first degree murders of Lee Iseli and Cole and William Neer, and the attempted first degree murder of James Kirk.
At the penalty proceedings, Dodd moved to exclude any reference to his "diary". The court excluded the sections entitled "1968 to July 1989" and "Incident #3". It reviewed remaining sections of the diary, line by line. The court excluded any evidence of Dodd's sexual activity with Lee Iseli's corpse. It entered thorough oral and written findings concerning the other evidence admitted and excluded.
Before and during the penalty phase, Dodd's attorneys gathered mitigating evidence. They reviewed the possibility of calling mitigating witnesses with investigators, including Ms. McMahill. The attorneys and investigators discussed with Dodd the possibility of calling witnesses who would offer mitigating evidence.
After consulting with counsel, Dodd chose not to present mitigating evidence and so instructed his attorneys. The. court discussed this decision with Dodd at the close of the State's case and told him to think about it overnight before he determined not to call any witnesses. The next day, the court affirmed that Dodd understood he could introduce mitigating evidence, that investigators had gathered potential mitigating evidence, and that it was Dodd's decision, after consulting with his attorneys, not to present such evidence. At the June 1991 hearings, Dodd testified that he was satisfied with the efforts of the investigators and attorneys. He stated that his attorneys did not present mitigating evidence because he told them not to and because cross examination might reveal other damaging information.
*10The jury sentenced Dodd to death on July 14, 1990. The court imposed sentences of death for the aggravated murders of Billy and Cole Neer and Lee Iseli.1
At sentencing, Dodd objected to "automatic review" of his case by this court. He stated that he would not file an appeal and asked that the trial court accept his waiver of any appeal except the sentence review, but the court declined. The trial court appointed Ms. Mandel and Mr. Levy to handle Dodd's appeal.
Dodd informed the court on January 5, 1991, that he understood the difference between the sentence review of RCW 10.95 and a "general" appeal. He expressed his "continued desire that there be no appeal beyond the mandatory sentence review" and asked this court "to instruct [amici] that they are not to raise or address any issues other than those mandated by statute for purposes of the mandatory sentence review . . .." On February 11, 1991, Dodd again contacted this court. He stated that the trial court:
[W]ent out of its way to ensure I had a fair trial. The jury went out of its way in attempting to find a mitigating factor to merit leniency, but they found nothing and made the only possible decision according to the statutes of the state of Washington. There is no reason to waste . . . time and money on what I firmly believe would be useless appeals. I again ask that I be allowed to waive all waivable rights to appeal and that the mandatory proportionality review be heard in a timely manner.
We redesignated Dodd's attorneys as amici curiae, appointed new counsel to represent Dodd, ordered a fact-finding hearing to determine whether Dodd's decision to waive his general right of appeal was made knowingly and voluntarily and resolve any question regarding his competency, and ordered that the waiver issue be presented at the same time as the argument on appeal.
At the fact-finding hearing, Dr. Larsen opined that Dodd was intellectually intact and not suffering from any psychosis. The doctor stated that Dodd was oriented; did not exhibit *11a thought disorder; and did not suffer hallucinations, delusions, "psychotic elements", significant personality disorder, or any physical disease. Dr. Larsen diagnosed Dodd as suffering from "severe homosexual pedophilia... [displaying] no evidence of mental disease or defect." Exhibit 111(d). Dr. Larsen concluded that Dodd understands the charges against him, the consequences of those charges, and the consequences if he waives his right of appeal. Dr. Larsen opined that one rationally can choose to die and that Dodd rationally has made that choice.
Dr. Parvaresh agreed with Dr. Larsen. He also testified that Dodd possessed above average intelligence, intact memory, insight, and the ability to make sound judgments concerning his welfare. Dodd did not exhibit any evidence of psychosis, organic psychopathology, or other impairment that prevents him from understanding the nature of these legal proceedings or the consequences if he waives the proceedings. Dr. Parvaresh stated that Dodd has a diagnosable psychiatric disorder: Pedophilia, sadism with mixed personality. That disorder, however, does not impair his ability to understand the consequences if he waives his right to appeal. Dr. Parvaresh concluded that there is no reason to question Dodd's competence, Dodd understands and appreciates the peril he faces, and he has the capacity to voluntarily and intelhgently waive his right to appeal.
Ms. Araiza, a social worker, met with Dodd several times and conducted a mental status exam. She concluded that Dodd is coherent, oriented, intelligent, and is free of psychosis, delusions, or hallucination. Ms. Araiza testified that Dodd's abstract thinking and insight is good, his memory is intact, he is logical, and he understands the connection between behavior and its consequences. Ms. Araiza concluded that Dodd was competent, understood the ultimate sentence in this case, and was capable of assisting in his defense.
Dodd testified that the sentencing proceeding was fair and that any alleged errors were harmless, and that even if on retrial he might escape the death penalty, he did not want to appeal issues from the penalty phase. Dodd under*12stood that he could die if he waived his right to appeal, said that he gave the decision to waive a lot of thought, and that he accepted the "reality" of death. Dodd stated he would rather die than live his life in a cell, that this had been his position since the sentencing, that he would not change his mind in the future, and that he was competent to make that decision. Dodd testified that even if the death penalty were declared unconstitutional and he could be released, he wanted to waive his right to appeal.
Mr. Lee, Dodd's attorney on appeal, testified that Dodd is intelligent and expresses himself clearly. Lee reported that Dodd understands the charges against him, is able to assist counsel in his defense, and understands that he may die if he waives his right to appeal. Lee opined that Dodd, after weighing death and the possibility of life imprisonment without parole, rationally preferred death.
At the fact-finding hearing, Dodd moved to admit the evidence that the trial court excluded during the sentencing proceeding. The State did not object and the court admitted the evidence. All of the evidence the State offered at trial, even that which the court originally excluded, is before us on review.
The court found that Dodd suffers "no mental impairment which . . . affect[s] [his] decision to waive his rights of appeal." Verbatim Report of Proceedings (June 12, 1991), at 67. It opined that there is "no evidence that [Dodd] has not had an adequate understanding of his legal rights"; Dodd "fully understands the peril... he faces from the verdict of the jury"; he clearly understands the effect that waiving his appeal will have, viz, that he will be put to death; Dodd is competent to make decisions and his desire to be put to death is "based on a thoughtful process"; and that Dodd can "rationally assist his attorney". Based on his observation of Dodd during the proceedings, the court found that Dodd interacted with his attorney, understood the alternatives discussed with him, and possessed an in-depth understanding of the issues considered at the hearing. The judge stated that at previous hearings, when he spoke with Dodd, Dodd possessed "a clear *13understanding of the issues . . . and . . . had a clear and rational decision-making process with respect to those issues."
The court stated that at all times Dodd has acted rationally and made independent decisions. It found that Dodd's decision to waive his right to appeal was "a considered decision", which he "unwaveringly" maintained, and that it was not the product of any psychological impairments. The court stated that Dodd "not only waived his right to appeal . . . but also . . . waived any other claim of error that anyone" could present. Because Dodd did not authorize anyone to file a notice of appeal and asked that the notice in this case be withdrawn, the court found there is no valid notice of appeal filed.
Analysis
This case is unique and presents a question of first impression in the State of Washington. Dodd wants to waive appellate review except that required by RCW 10.95.100, which governs review of death sentences. Amici allege that allowing defendant to limit the scope of review to the inquiry set forth in RCW 10.95.130 violates the Eighth Amendment's prohibition against "cruel and unusual punishments". The State contends that the statutory language of RCW 10.95 and case law interpreting the Eighth Amendment allow a capital defendant to waive review of all claims but those mandated by statute.2
*14RCW 10.95.100 provides that:
Mandatory review of death sentence by supreme court. . . Whenever a defendant is sentenced to death, upon entry of the judgment and sentence in the trial court the sentence shall be reviewed on the record by the supreme court of Washington.
The act further states:
Questions posed for determination by supreme court in death sentence review — Review in addition to appeal ... (1) The sentence review required by RCW 10.95.100 shall be in addition to any appeal. The sentence review and an appeal shall be consolidated for consideration. . . .
(2) With regard to the sentence review required by this act, the supreme court of Washington shall determine:
(a) Whether there was sufficient evidence to justify the affirmative finding to the question posed by RCW 10.95.060(4); and
(b) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. . . . "[Sjimilar cases" means
cases reported in the Washington Reports or Washington Appellate Reports since January 1, 1965, in which the judge or jury considered the imposition of capital punishment regardless of whether it was imposed or executed, and cases in which reports have been filed with the supreme court under RCW 10.95.120; and
(c) Whether the sentence of death was brought about through passion or prejudice.
RCW 10.95.130. And RCW 10.95.150 provides that "[Appellate review, if any, and sentence review" shall be decided within a year after the clerk receives the record of a capital case.
The text of RCW 10.95.100 and .130 states that this court "shall" review a sentence of death. The word "shall" in a statute is imperative and creates a duty. State v. Smith, 117 Wn.2d 263, 271, 814 P.2d 652 (1991). Use of the term "shall" in RCW 10.95.100 and .130 also establishes that this court must review a sentence of death, regardless of a defendant's wishes. Moreover, this court has acknowledged that RCW *1510.95 "requires" it to review a sentence of death. In re Rupe, 115 Wn.2d 379, 388, 798 P.2d 780 (1990).
Although RCW 10.95 requires review of a death sentence, the act also suggests that a defendant may waive general review. First, the Legislature distinguished between "sentence review" and general "appellate review". Second, it requires sentence review, but indicates general review is not required, as evidenced by the phrase "if any", referring to general appellate review. The directive that sentence review is "in addition to any [general] appeal" also suggests general review must be available, but may be waived.3
We believe that the review procedure set forth in RCW 10.95, which requires appellate review of a death sentence but does not require a general appeal, meets constitutional standards. Mandatory sentence review minimizes the risk of random or arbitrary sentencing and the review is "prompt and automatic". Pulley v. Harris, 465 U.S. 37, 48-49, 79 L. Ed. 2d 29, 39, 104 S. Ct. 871, 878-79 (1984); see Gregg v. Georgia, 428 U.S. 153, 196-207, 49 L. Ed. 2d 859, 887-93, 96 S. Ct. 2909, reh'g denied, 429 U.S. 875, 50 L. Ed. 2d 158, 97 S. Ct. 197 (1976).
State and federal courts that address the issue agree that a defendant may, consistent with the Eighth Amendment, waive his right of general appeal.
Gilmore-Whitmore
The United States Supreme Court, in Gilmore v. Utah4 and Whitmore v. Arkansas,5 6effectively holds that a defendant may knowingly and voluntarily waive appellate review. We believe Gilmore and Whitmore are controlling in this case. A jury convicted Gilmore and sentenced him to death. *16Gilmore did not appeal or seek a stay of execution, but his mother, as "next Mend", applied for a stay of execution. Gilmore responded that his mother did not have standing to act on his behalf.
Justices Burger and Powell stated that Mrs. Gilmore did not have standing as "next Mend" unless:
it were demonstrated that. . . Gilmore is unable to seek relief in his own behalf.... The only possible exception ... would be if the record suggested . . . that he was incompetent to waive his right of appeal under state law and was at the present time incompetent . . ..
(Citation omitted.) Gilmore, 429 U.S. at 1014, 50 L. Ed. 2d at 633. The Justices agreed that Gilmore "knowingly and intelligently, with full knowledge of his right to seek an appeal... has waived that right." Gilmore, 429 U.S. at 1014-15, 50 L. Ed. 2d at 633-34. They also agreed that:
the State's determinations of his competence to waive his rights knowingly and intelligently were firmly grounded. . . .
When the record establishing a knowing and intelligent waiver of. . . Gilmore's right to seek appellate review is combined with the ... written response [Gilmore] submitted to this Court, it is plain that the Court is without jurisdiction to entertain the "next friend" application filed by Bessie Gilmore. ..."
(Footnote omitted.) Gilmore, 429 U.S. at 1015-16, 50 L. Ed. 2d at 634. Justices Burger and Powell found that "Gilmore, duly found . . . competent by the Utah courts, has had available meaningful access to this Court and has declined expressly to assert any claim here other than his explicit repudiation of [his mother's] efforts to speak for him . . .." Gilmore, 429 U.S. at 1017, 50 L. Ed. 2d at 635. They concluded that because Gilmore knowingly and intelligently waived his right to review, the Court could not consider Mrs. Gilmore's "next Mend" application. Gilmore. Justices Stevens and Rehnquist concurred, stating:
[Tlhe record not only supports the conclusion that Gilmore was competent to waive his right to appeal, but also makes it clear that his access to the courts is entirely unimpeded and therefore a third party has no standing to litigate an Eighth Amendment claim ... on his behalf.
Gilmore, at 1017.
*17In Whitmore, Ronald Simmons was sentenced to death for killing two people and wounding three others. Simmons waived any right of appeal. The trial court determined that Simmons was competent and accepted his waiver. The Arkansas Supreme Court denied Franz the right to prosecute an appeal on Simmons's behalf, as "next friend”.6 The District Court confirmed that Franz did not have standing to prosecute an action as Simmons's "next friend". Whitmore, 495 U.S. at 152-53, 109 L. Ed. 2d at 143, 110 S. Ct. at 1721.
In a second proceeding, the jury convicted and sentenced Simmons to death for killing 14 people. Simmons waived his right to appeal. The court found him competent and accepted the waiver. The State Supreme Court affirmed the trial court's decision. Whitmore, another death row inmate, moved to intervene in the proceedings. Whitmore, 495 U.S. at 153, 109 L. Ed. 2d at 143-44, 110 S. Ct. at 1722.
The United States Supreme Court concluded that Whit-more did not have standing to prosecute an action individually. Whitmore, 495 U.S. at 161, 109 L. Ed. 2d at 149, 110 S. Ct. at 1726. The Court also held that, absent evidence that Simmons suffered a condition which prevented him from making an intelligent decision, Whitmore could not intervene as Simmons's "next friend". It reasoned that:
[O]ne necessary condition for "next friend" standing ... is a showing by the proposed "next friend" that the real party . . . is unable to litigate his own cause due to mental incapacity, lack of access to court, or other similar disability.
That prerequisite ... is not satisfied where an evidentiary hearing shows that the defendant has given a knowing, intelligent, and voluntary waiver of his right to proceed, and his access to court is otherwise unimpeded. . . . The Supreme Court of Arkansas . . . affirmed the . . . finding that Simmons had "the capacity to understand the choice between life and death and to knowingly and intelligently waive any and all rights to appeal his sentence." . . . [W]e find no reason to disturb the judgment . . ..
(Citations omitted.) Whitmore, 495 U.S. at 165, 109 L. Ed. 2d at 151-52, 110 S. Ct. at 1728-29.
*18The Supreme Court in Gregg approved a bifurcated proceeding in capital cases, in which sentencing is considered after the determination of guilt, and aggravating and mitigating "standards" guided the sentencing body's discretion. The Court has emphasized that appellate review is essential, as a check against random or arbitrary imposition of the death penalty.* **7 The Court, however, has not directly addressed whether a defendant may waive or limit the scope of review. The analyses in Gilmore and Whitmore indicate that the defendant in a capital case may waive his right of general appeal, provided that the court establishes that the defendant is competent and his decision knowing and voluntary. These cases support our conclusion that Dodd can waive general review, if his waiver is knowing and voluntary. The weight of authority from other state and federal courts further supports the conclusion that Dodd can waive general review.
Other Federal and State Courts
The Louisiana Supreme Court reviews "every sentence of death to determine if it is excessive," applying the same standard that RCW 10.95.130 employs. La. Code Crim. Proc. Ann. art. 905.9; La. Sup. Ct. R. 28 (905.9.1). The court in Martin v. Blackburn, 521 F. Supp. 685, 713 (E.D. La. 1981) stated that:
There is ... no general federal constitutional right to state appellate review of state convictions and capital sentences. . . . Therefore, there is no general federal constitutional requirement that the State . . . afford a [capital] defendant . . . any appellate review of his conviction and sentence at all.
The court's reasoning suggests that a capital defendant may waive general review.
Arkansas's sentencing scheme makes review available, but a defendant may decline review.8 Franz v. State, 296 *19Ark. 181, 188-89, 754 S.W.2d 839, 843 (1988). If he does so, the trial court determines whether the defendant is competent to waive his right of review, the State Supreme Court reviews that competency determination, and if the Supreme Court determines that a defendant is competent, then proceedings terminate. Franz, at 189-90; Simmons v, Arkansas, 298 Ark. 193, 194, 766 S.W.2d 422, 423 (1989).
Nevada and Indiana require review of a death sentence, pursuant to state statutes.9 In both states, a defendant may waive general review if the trial court finds that the defendant is competent.10 The Supreme Court of Nevada reviews the competency determination when it reviews the sentence. Kirksey v. State, 107 Nev. 499, 502, 814 P.2d 1008, 1010 (1991). The Indiana Supreme Court conducts a hearing, to determine if the defendant is competent to waive his general appeal. Judy v. State, 275 Ind. 145, 149, 155, 157, 416 N.E.2d 95 (1981); Vandiver v. State, 480 N.E.2d 910, 912 (Ind. 1985).
The weight of authority from federal and state courts supports our conclusion that a capital defendant may waive general review and limit his appeal to statutory review of his sentence. We recognize that several courts have held to the contrary.* 11 Those cases, however, are distinguishable *20from Dodd's. The Pennsylvania statute examined in Commonwealth v. McKenna, 476 Pa. 428, 383 A.2d 174 (1978) was unconstitutional on its face; Washington's death penalty statute is constitutional. State v. Rupe, 101 Wn.2d 664, 697-98, 683 P.2d 571 (1984). The Florida statute discussed in Goode v. State, 365 So. 2d 381 (Fla. 1978), the California statute at issue in Massie v. Sumner, 624 F.2d 72 (9th Cir. 1980) and People v. Stanworth, 71 Cal. 2d 820, 457 P.2d 889, 80 Cal. Rptr. 49 (1969), and the Arizona statute in State v. Brewer, 170 Ariz. 486, 826 P.2d 783 (1992) all contain broader language than that chosen by our Legislature. They require review of the "judgment" or the "judgment of conviction and sentence". Our Legislature mandates review only of "the sentence".
In summaiy, a defendant may, consistent with RCW 10.95, waive his right of general review but may not waive statutory sentence review. A waiver must be knowing, voluntary, and intelligent. Whitmore v. Arkansas, supra. The trial court must hold a hearing and determine whether a defendant's waiver of general review is valid. This court will review the trial court's determination when it reviews the sentence.
The amici contend that even if the federal constitution allows a capital defendant to waive general appellate review, article 1, section 14 of our state constitution precludes such a waiver. The six nonexclusive factors set forth in State v. Gunwall, 106 Wn.2d 54, 58, 720 P.2d 808, 76 A.L.R.4th 517 (1986) determine whether the state constitution offers greater protection to a defendant than the federal constitution:
1. The textual language of the state constitution;
2. Significant differences in the texts of parallel provisions of the federal and state constitutions;
3. State constitutional and common law history;
4. Preexisting bodies of state law, including statutory law;
5. Differences in structure between the federal and the state constitutions; and
6. Matters of particular state interest or local concern. *21Applying these criteria, we conclude that Const, art. 1, § 14 does not extend greater protection than the Eighth Amendment and does not bar a capital defendant from waiving general review.
Article 1, section 14 prohibits "cruel punishment". The Eighth Amendment prohibits "cruel and unusual punishments". Article 1, section 14, on its face, may offer greater protection than the Eighth Amendment, because it prohibits conduct that is merely cruel; it does not require that the conduct be both cruel and unusual.
The drafters of the constitution did not adopt the ordinary phrase "cruel and unusual" because they thought the term "cruel" was "sufficient". State v. Fain, 94 Wn.2d 387, 393, 617 P.2d 720 (1980); Journal of the Washington State Constitutional Convention, 1889, at 501-02 (B. Rosenow ed. 1962). The constitutional record does not indicate whether the framers believed the term "cruel" was synonymous with or more expansive than the term "cruel and unusual". Thus, it is not clear that the parallel provisions are significantly different.
The constitutional history of Const, art. 1, § 14 does not establish whether the drafters intended article 1 to be interpreted more broadly than its federal counterpart. See Journal, supra. This court twice has interpreted article 1, section 14, more broadly than the Eighth Amendment. In State v. Fain, supra, we determined that sentencing a defendant to life imprisonment, without parole, for thefts that totaled less than $500 was unconstitutionally disproportionate. Fain, at 389, 402. We reached the issue, even though the defendant would not have a claim under the Eighth Amendment. Fain, at 392-93. In State v. Bartholomew, 101 Wn.2d 631, 683 P.2d 1079 (1984), this court concluded that portions of RCW 10.95 violated the Eighth Amendment. We also stated that even if the provisions did not violate the federal constitution, the Supreme Court's interpretation of the Eighth Amendment did not constrain our interpretation of the cruel punishment clause of the state constitution. Bartholomew, at 639.
*22Former RCW 10.94.030, the precedent statute to RCW 10.95.100, required this court to review a death sentence but contemplated that a defendant could limit his appeal to that required by the statute. Former RCW 10.94.030(3). It stated that the sentence review was "in addition to direct appeal, if taken". The Legislature did not require automatic review of a death sentence or conviction before 1977.
The federal constitution is a grant of limited power, while the state constitution imposes limitations on the otherwise plenary power of the State to do anything not expressly forbidden by the state constitution. Gunwall, at 66. We previously have held that this distinction supports construing constitutional amendments more broadly, to protect a defendant's personal rights. Gunwall, at 66-67. This rationale, however, is not persuasive in a situation such as Dodd's, where the defendant emphatically does not wish to exercise his personal rights, and the amici justify enforcement of those rights based on public interest overriding defendant's personal interest.
Preventing arbitrary or "cruel" capital punishment is not a local concern. Further, as noted above, our state did not mandate review of death sentences until 1977.
The Gunwall factors do not demand that we interpret Const, art. 1, § 14 more broadly than the Eighth Amendment. Const, art. 1, § 14 does not preclude the defendant in a capital case from limiting the scope of review to that required by state statute.
Having concluded that Dodd may waive a portion •of his right of review, we must determine whether he is competent to enter such a waiver. We have not formulated the standard of competency applicable when reviewing a capital defendant's waiver of his right of general appeal. The Supreme Court, in Whitmore, approved Arkansas's test: whether the defendant had "the capacity to understand the choice between life and death and to knowingly and intelligently waive any and all rights to appeal his sentence." Whitmore, 495 U.S. at 165, 109 L. Ed. 2d at 151-52, 110 S. *23Ct. at 1728. The Arkansas standard focuses attention on the critical issue in a capital case: whether the defendant has the capacity to choose between life and death and it is consistent with the competency tests other federal and other state courts approve or apply when a defendant waives appeal.12 The Whitmore standard also is consistent with the standard of competence we require for the State to execute a capital defendant. State v. Harris, 114 Wn.2d 419, 427-28, 789 P.2d 60 (1990).13 In Dodd's case and in the future, we will apply the competency standard that the Supreme Court approved in Whitmore when reviewing a capital defendant's waiver of his general right of review.
The testimony of Drs. Larsen and Parvaresh and of Ms. Araiza support the trial court's conclusion that Dodd understood the choice between life and death, and knowingly and voluntarily waived his right of general appeal. The trial court's observations of Dodd during the competency hearing and prior proceedings also support the conclusion that Dodd was competent to waive general review. Further, the material defendant submitted to this court confirms that Dodd appreciated the consequences of his waiver, and knowingly and voluntarily waived all rights to a general appeal.14 The record supports the trial court's determination that Dodd was competent to waive general review and we accept his waiver.
*24Mandatory Sentence Review
Because Dodd validly waived his right of general review, we turn next to the sentence review that RCW 10.95 requires. The jury concluded that "there are not sufficient mitigating circumstances to merit leniency" in this case. RCW 10.95-.060(4). Washington's death penalty statute demands that we review that determination and answer three questions:
1. Whether sufficient evidence justifies the finding that "there are not sufficient mitigating circumstances to merit leniency";
2. Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant; and
3. Whether the sentence of death was brought about through passion or prejudice. RCW 10.95.130(2).
Assessing the sufficiency of the evidence, this court asks whether:
after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found sufficient evidence to justify this affirmative finding beyond a reasonable doubt.
State v. Rice, 110 Wn.2d 577, 623, 757 P.2d 889 (1988), cert. denied, 491 U.S. 910 (1989) (quoting State v. Rupe, 108 Wn.2d 734, 765, 743 P.2d 210 (1987)). We do not weigh the aggravating factors against the mitigating factors the way the jury did; rather we consider the circumstances of the crime and any mitigating circumstances and determine whether a rational jury could have concluded that mitigating circumstances do not outweigh the circumstances of the *25crime. Rice, at 624-25. The record in this case establishes that Dodd intentionally and with premeditation killed three children. In each case, the desire to conceal his identity was an essential motive for the murder. The Iseli murder was particularly brutal.
Dodd chose not to present mitigating evidence at the sentencing hearing. The amici point to evidence that they believe is mitigating: Dodd participated in band during the 1970's and was well liked by his band instructors; he was honest, trustworthy, and rehable when assisting in band practice; his parents argued frequently and his father tried to commit suicide in 1976; he took his parents' divorce in 1977 hard; he was physically inept and often laughed at at school; and he once cried because he didn't like molesting children. The doctors' reports contradict any suggestion that Dodd suffered a mental disease, other than pedophilia, which would merit leniency. The other mitigating factors listed in RCW 10.95.070 do not apply to Dodd's case.
The mere presence of mitigating factors does not require that the jury grant leniency, if the jurors are convinced that the circumstances of the crime outweigh the mitigating factors. Rice, 110 Wn.2d at 624. The jury correctly concluded here that the aggravating circumstances of this crime overwhelm any mitigating factors. Dodd committed three murders to conceal his identity; he committed murder during the course of or in furtherance of, or in immediate flight from, the rapes of Cole Neer and Lee Iseli; he committed murder during the course of or in furtherance of the kidnapping of Lee Iseli; and, in the Neer case, there was more than one victim. Based upon the record before us, we can only conclude that sufficient evidence supported the jury's finding that "there are not sufficient mitigating circumstances to merit leniency" in this case. Even if the jury had considered the alleged mitigating evidence, it is obvious it would not have changed its verdict.
*26Next, considering the crime and the defendant, we must determine whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases. "Similar cases" are cases:
reported in the Washington Reports or Washington Appellate Reports since January 1, 1965, in which the judge or jury considered the imposition of capital punishment regardless of whether it was imposed or executed, and cases in which reports have been filed with the supreme court under RCW 10.95.120[.]
RCW 10.95.130(2)(b). A case is not disproportionate if:
in similar cases throughout the state the death penalty has been imposed generally and not "wantonly and freakishly. . .".
State v. Lord, 117 Wn.2d 829, 909, 822 P.2d 177 (1991) (quoting State v. Harris, 106 Wn.2d 784, 798, 725 P.2d 975 (1986), cert. denied, 480 U.S. 940 (1987)). The concept of "proportionality" does not require precise uniformity between cases. State v. Lord, supra at 910. Precise uniformity is not possible because "the brutal and extreme [crimes] with which we deal in death penalty cases, are unique and cannot be matched up like so many points on a graph." Lord, at 910. Instead, the court looks for "overlapping similarities" and common resemblances between cases. Lord, at 911.
Dodd was convicted of killing three children, between the ages of 4 and 11. In six other cases a defendant killed three or more victims. State v. Campbell, 103 Wn.2d 1, 691 P.2d 929 (1984), cert. denied, 471 U.S. 1094 (1985); State v. Rice, 110 Wn.2d 577, 757 P.2d 889 (1988), cert. denied, 491 U.S. 910 (1989); State v. Mak, 105 Wn.2d 692, 718 P.2d 407, cert. denied, 479 U.S. 995 (1986); Report of the Trial Judge, State v. Ng, King Cy. cause 83-1-00504-0; Report of the Trial Judge, State v. Runion, King Cy. cause 89-1-03429-4; Report of the Trial Judge, State v. Macas, King Cy. cause 89-1-01251-7. In the Mak, Ng, Runion, and Macas cases, however, there were fewer aggravating factors and, in three of those cases, there were significant or "powerful" mitigating *27factors that are not present here. Four of the "similar cases", thus, do not closely resemble Dodd's.
Dodd's case most closely resembles the Campbell and Rice cases, in which the death penalty was imposed. Campbell murdered three victims, one of them a child. Rice murdered a family of four, including two children. Neither Campbell nor Rice, however, preyed exclusively upon children, as did Dodd.
Both the Campbell and Rice cases included multiple victims and concealment of identity as aggravating factors. Campbell and Rice, however, murdered in the course of a single crime, robbery. Dodd's murders, conversely, were committed in the course of the rape of one victim and the rape and kidnapping of another. Comparing Dodd's offense to the offenses in similar cases, his sentence of death is not excessive or disproportionate.
We must also consider Dodd's personal characteristics. Dodd's record of prior convictions is not as significant as the defendants' records in Rice or Campbell. Lack of criminal history, alone, however, does not render a sentence disproportionate. The defendant in State v. Rupe, 108 Wn.2d 734, 743 P.2d 210 (1987), cert. denied, 486 U.S. 1061 (1988) had no criminal history but was sentenced to death, and this court affirmed his sentence. Rupe, at 770. Further, Dodd has an "ingrained" pattern of predatory, sexually deviant behavior that counselors believe is untreatable and renders him dangerous. And, despite counsel's suggestion in closing argument, there is no credible evidence of mental disease, other than pedophilia with personality disorder. Finally, Dodd killed three children in an extraordinarily vicious and cold-blooded manner, and the evidence indicates that Billy Neer and Lee Iseli suffered for a significant length of time before their deaths. Dodd's treatment of Lee Iseli constitutes mental and physical torture. Dodd's sentence is not excessive or disproportionate.
This court, lastly, must determine whether passion or prejudice brought about Dodd's sentence. We find no evi*28dence that passion or prejudice brought about the sentence. The photographs and diary excerpts that Dodd moved to admit at the competency proceeding, which might have engendered passion or prejudice, were correctly excluded by the trial court from the sentencing proceeding and, thus, did not influence the jury's decision.15 Dodd's sentence was not the result of passion or prejudice.
Since the date of his conviction on July 14, 1990, Dodd has consistently expressed his desire to waive general review, complete the statutory review, and be executed. In letters to this court, proceedings before the trial court, and in television interviews from his cell, seen by thousands of viewers, Dodd has affirmed his guilt and reiterated his desire that this court conclude its review so the State may carry out his sentence. He stated, in his brief to this court:
I waive my right to appeal. I plead guilty, again, to the rapes and murders. If this case is sent back to a trial court I will plead guilty again and physically and vocally demand my conviction and death sentence.
Summary
We hold that a defendant may waive general review, but may not waive review of his sentence, under RCW 10.95-.100. Based on our review of the record and after comparing Dodd's case to "similar cases" we conclude that sufficient evidence supported Dodd's sentence, the sentence was not excessive or disproportionate, and it was not the result of passion or prejudice.
Conclusion
1. This court must review any sentence of death, pursuant to RCW 10.95 and the state and federal constitutions.
2. The defendant in a capital case may waive his general right of review, provided that he is competent to make such a waiver.
*293. The record establishes that Dodd is competent to waive general appellate review: He is capable of understanding the choice between life and death and knowingly and intelligently waiving all rights to appeal. We accept Dodd's waiver of his right of general appellate review.
4. The amici admitted in open court that Dodd was competent and fully capable of waiving general appellate review.
5. Sufficient evidence supports the jury's sentence of death for Dodd. That sentence is not disproportionate to the sentence imposed in similar cases, and it was not the result of passion or prejudice.
We affirm the sentence of death.
Brachtenbach, Dolliver, Durham, Guy, and Johnson, JJ., concur.
In a separate proceeding, the court sentenced Dodd to a determinate sentence of 50 years for the attempted murder of James Kirk.
The Eighth Amendment, which prohibits "cruel and unusual punishments", applies to the states through the Fourteenth Amendment. Robinson v. California, 370 U.S. 660, 8 L. Ed. 2d 758, 82 S. Ct. 1417 (1962). Infliction of the death penalty especially invokes the concerns of the Eighth Amendment because the penalty is irrevocable. Furman v. Georgia, 408 U.S. 238, 306, 33 L. Ed. 2d 346, 388, 92 S. Ct. 2726, 2760 (1972). The Supreme Court, therefore, imposes procedural and substantive restrictions on legislatures and sentencing authorities, to ensure that "capital punishment is not imposed without. . . serious and calm reflection . . .." Thompson v. Oklahoma, 487 U.S. 815, 856, 101 L. Ed. 2d 702, 733, 108 S. Ct. 2687, 2710 (1988). The sentencing scheme must not allow the death penalty to be wantonly or freakishly imposed, it must direct and limit jury discretion, to minimize the risk of arbitrary or capricious action, and it must allow particularized consideration of relevant aspects of the character and record of each defendant, and the circumstances of the offense, before imposition of *14the sentence. Gregg v. Georgia, 428 U.S. 153, 188-89, 49 L. Ed. 2d 859, 883, 96 S. Ct. 2909, 2932, reh'g denied, 429 U.S. 875, 50 L. Ed. 2d 158, 97 S. Ct. 197, 198 (1976); Woodson v. North Carolina, 428 U.S. 280, 304-05, 49 L. Ed. 2d 944, 960-61, 96 S. Ct. 2978, 2991 (1976).
Webster's Third New International Dictionary 24 (1971) defines "in addition to" as "over and above". The Random, House Dictionary of the English Language 23 (2d ed. 1987) defines "in addition to" as "as well as, besides".
429 U.S. 1012, 50 L. Ed. 2d 632, 97 S. Ct. 436, reh'g denied, 429 U.S. 1030, 50 L. Ed. 2d 636, 97 S. Ct. 655 (1976).
495 U.S. 149, 109 L. Ed. 2d 135, 110 S. Ct. 1717 (1990).
See Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988).
See Pulley v. Harris, 465 U.S. at 44-45, 48-50, 53-54, 79 L. Ed. 2d at 37, 43, 104 S. Ct. at 877, 881; Jurek v. Texas, 428 U.S. 262, 276, 49 L. Ed. 2d 929, 941, 96 S. Ct. 2950, 2958 (1976); Proffitt v. Florida, 428 U.S. 242, 250, 251, 253, 258-60, 49 L. Ed. 2d 913, 96 S. Ct. 2960 (1976).
The United States District Court for the Eastern District of Arkansas severely criticized the State's statutory scheme in Franz v. Lockhart, 700 F. *19Supp. 1005, 1023-24 (E.D. Ark. 1988) because the scheme allows a defendant to forgo any review at all, of conviction or sentence. The court's discussion of the scope of review was dicta, however, since "under precedent binding on" the court, Franz did not have standing to raise the waiver issue. Franz, at 1024.
Nev. Rev. Stat. § 177.055 (1992); Ind. Code Ann. § 35-50-2-9(h) (Burns 1972).
In Nevada, a waiver must be "intelligently made and with full comprehension of its ramifications." Cole v. State, 101 Nev. 585, 588, 707 P.2d 545, 547 (1985); see Flanagan v. State, 105 Nev. 135, 139, 771 P.2d 588, 591 (1989). In Indiana the waiver must be "knowing, voluntary, and intelligent". Judy v. State, 275 Ind. 145, 157, 416 N.E.2d 95, 101 (1981); see Vandiver v. State, 480 N.E.2d 910, 912 (Ind. 1985).
Massie v. Sumner, 624 F.2d 72, 74 (9th Cir. 1980); State v. Brewer, 170 Ariz. 486, 826 P.2d 783 (1992); People v. Stanworth, 71 Cal. 2d 820, 833, 457 P.2d 889, 898, 80 Cal. Rptr. 49, 58 (1969); Commonwealth v. McKenna, 476 Pa. 428, 383 A.2d 174, 180 (1978); Goode v. State, 365 So. 2d 381, 384 (Fla. 1978).
The federal courts demand that a defendant have the "capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation". Franz v. Lockhart, supra at 1011. Nevada requires that a waiver be "intelligently made and with fudl comprehension of its ramifications." Flanagan, at 139.
In Harris we stated: "[A] defendant is competent to be executed if he 'is capable of properly appreciating his peril and of rationally assisting in his own defense .. ..'" Harris, at 427-28. This standard applies "equally in the context of a person's insanity at the time of punishment as it does at the time of trial.” Harris, at 428.
Finally, the amici concede that Dodd is competent:
"Justice Dore: We had a competency hearing down in Vancouver, conducted by Judge Harris and he held that [Dodd] was very competent. And I notice that *24in your argument today you said he was a very intelligent person. Are you conceding that he's competent ... in this case?
"Levy: Uh, yes.
"Dore: You're not raising that argument?
"Levy: Uh, no." Tape of oral argument before Supreme Court (Jan. 14, 1992). We also note that Mr. Lee, who represented Dodd, was present when amici made this statement and he did not object.
Amici move that we exclude this evidence because it is not "properly part of the record." The photographs and diary material were admitted on Dodd's motion, without objection by any party, and it did not influence the trial court or this court. The material is part of the record. RAP 9.1.