(dissenting) — Mr. Dodd has expressed his wish to die, to waive all appeals and have us only make the determinations required by RCW 10.95.130(2). His expressions are clear, and he is legally competent. His clearly expressed wish to die places this case in stark contrast to other cases where defendants have expressed a desire to continue their lives, even if in prison without possibility of parole. What is the effect of Mr. Dodd's declarations on the processes of this state and court?
Mr. Dodd's wishes, while entitled to some weight, are not determinative. Our death penally statute requires us to review every death sentence on the record. RCW 10.95.100. In addition, there are several important policy reasons why allowing Dodd to waive his general appeals would be unwise. First, there is the possibility that Dodd may change his mind between now and the execution. Second, society has a significant interest in the nonarbitraiy application of the death penalty. To give paramount weight to Mr. Dodd's desires would, in effect, mean that the State is participating in Mr. Dodd's suicide. Lenhard v. Wolff, 444 U.S. 807, 811, 62 L. Ed. 2d 20, 100 S. Ct. 29 (1979) (Marshall, J., dissenting). Therefore, I believe we must review the arguments raised by amici curiae.
Amici have raised many significant claims that the majority will not consider. Amici argue (1) the trial court committed error by admitting portions of Dodd's diary; (2) the trial court gave the jury instructions which violated the state and federal constitutions; (3) Dodd's confession and physical evidence should not have been admitted dining the sentencing phase; (4) failure of Dodd's trial counsel to present mitigating evidence violated the Sixth and Eighth Amendments to the *31federal constitution; and (5) Dodd's death sentence should be reversed under RCW 10.95.130(2).
I
Waiver of General Appeal
The majority hastily concludes that the Legislature has approved the waiver of appeals in capital cases. Its reading of RCW 10.95 is unpersuasive. It also fails to address important policy reasons why we should not recognize a capital defendant's right to waive his right to appellate review. Finally, allowing such a waiver raises serious problems under our federal and state constitutions. Therefore, I would hold that Mr. Dodd cannot waive his right to general appellate review.
A
RCW 10.95
The majority opinion correctly notes that Washington's death penalty statute requires us to review a capital defendant's sentence. RCW 10.95.100. It erroneously concludes, however, that the Legislature intended to allow capital defendants to limit the scope of appellate review of their sentences. I cannot infer that the Legislature wished to allow capital defendants to waive such an important right.
Under RCW 10.95.100, we are required to review all capital defendants' sentences:
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.
(Italics mine.) Nothing in RCW 10.95.100 suggests the scope of sentence review is limited.
The majority infers that the Legislature intended to allow capital defendants to waive their right to general appeals from the language of RCW 10.95.130(1) and .150:
The sentence review required by RCW 10.95.100 shall be in addition to any appeal.
In all cases in which a sentence of death has been imposed, the appellate review, if any, and sentence review . . ..
(Italics mine.) A more plausible interpretation of the words which the majority places so much emphasis on is that the *32Legislature was distinguishing appellate review of the sentence from other appeals. Appellate sentence review is mandatory. Other appeals, such as those arising from the guilt portion of a bifurcated capital trial, are not. While RCW 10.95.100 expressly requires us to review the sentence, there is no similar mandatory requirement that errors from the guilt phase be reviewed.
Neither of the passages cited by the majority mention waiver, nor do they suggest review of capital sentences is largely optional. The majority's statutory argument for waiver is tenuous at best. Of course, if the Legislature wants to amend RCW 10.95 to authorize such waivers, it is free to do so, subject to constitutional limitations.
A recent Arizona case, State v. Brewer, 170 Ariz. 486, 826 P.2d 783 (1992), supports my reluctance to conclude the scope of review under RCW 10.95 is as limited as the majority insists. In Brewer, the State argued that defendant's waiver of appeal vastly narrowed the scope of appellate review. It relied on Ariz. Rev. Stat. Ann. § 13-4035(A), which provides that "the supreme court shall review all rulings affecting the judgment" in a capital case. The State argued that the statute only required the court to review capital cases for fundamental error in the guilt phase, not the sentencing phase. The Arizona Supreme Court rejected the State's argument, recoghizing the gravity of the death penalty, and its corresponding obligation to review the sentence. Brewer, at 492-94. See also Evans v. State, 361 So. 2d 666, 667 (Ala. 1978) (holding that State's dominant and overriding interest in insuring the death penalty is imposed only for utmost of compelling legal reasons required appellate review).
While it is true that RCW 10.95.130(2) requires this court to make three determinations dining its sentencing review, it contains no suggestion that this court's mandatory sentence review is limited to those three issues. It does not circumscribe the scope of mandatory sentence review under RCW 10.95.100.
*33Even if one concedes that we are only required to consider the three issues posed in RCW 10.95.130(2), the majority adopts an unduly narrow view of our responsibility in addressing those issues. The three questions posed in RCW 10.95.130 are:
(a) Whether there was sufficient evidence to justify the [sentence of death]; 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. . . .; and
(c) Whether the sentence of death was brought about through passion or prejudice.
Unfortunately, the majority fails to realize that we cannot truly answer these questions unless we resolve the significant evidentiary and constitutional challenges raised by amici. For example, we cannot answer the question of whether there was sufficient evidence to justify a death sentence without first determining what evidence was properly before the jury. Therefore, we must consider amici's claims that portions of Dodd's diary should not have been admitted, that his confession and physical evidence should not have been admitted, and that his counsel's failure to present mitigating evidence violated the federal constitution. In addition, whether or not the diary excerpts should have been admitted is relevant for the question of whether passion or prejudice affected the jury's decision. RCW 10.95.130(2)(c). Nonetheless, the majority interprets these three questions narrowly, and fails to answer them adequately.16
*34To summarize, I differ with the majority's conclusion that the language of RCW 10.95 allows capital defendants to limit, the scope of appellate review of their sentences. RCW 10.95.100 requires us to review every death sentence on the record. I also find that review of all the errors raised by amici is necessary to answer the questions posed in RCW 10.95.130.
B
The Public Policy for Not Allowing Waiver
Public policy, as well as the state and federal constitutions, compel me to conclude that a capital defendant cannot waive or limit the scope of appellate review of a death sentence. First, there exists the serious possibility that capital defendants may change their minds about whether they want appellate review. Second, the societal interests at stake are simply too great to give effect to a waiver. Finally, waiver of appellate review in a capital case is highly questionable under both the federal and state constitutions.
Although Dodd's attempt to waive his appeals creates an issue of first impression for this court, we are likely to see many more cases in which capital defendants seek execution. It is common for those on death row to express a will to stop their appeals and proceed with execution. Most change their minds and agree to continue the appeals process. Note, Ethical Choices for Attorneys Whose Clients Elect Execution, 3 Geo. J. Legal Ethics 799, 800 (1989-1990). Given the physical and psychological pressures felt by those on death row, the lure of ceasing to resist the death penalty may be as *35great for the innocent17 as for the guilty. Strafer, Volunteering for Execution: Competency, Voluntariness and the Propriety of Third Party Intervention, 74 J. Crim. L. & Criminology 860, 869 (1983).18 Since the United States Supreme Court approved the revised death penalty laws in 1976, over 10 percent of the executions carried out in this country have been of those who elected to die. Note, at 800. Therefore, we must be sensitive to the fact that our decision in this case may control the outcome in many future death penalty cases.
The majority places undue weight on Dodd's desire to be executed. It may be that Dodd will change his mind. The majority fails to mention that those who have "volunteered" for execution have sometimes vacillated between vigorously pursuing their appeals and resisting efforts to prevent their executions. White, Defendants Who Elect Execution, 48 U. Pitt. L. Rev. 853, 854-55 (1986-1987). For example, John Louis Evans pleaded guilty to murder and demanded the death penalty at his penalty trial, threatening to kill again if it was not imposed. After the jury imposed the death penalty, he opposed all appeals on his behalf. Subsequently, however, Evans changed his mind and sought unsuccessfully to have his conviction and sentence overturned by the courts. White, at 855; see also Streib, Executions Under the Post-Furman Capital Punishment Statutes: The Halting Progression From "Let's Do It" to "Hey, There Ain’t No Point *36in Pulling so Tight", 15 Rutgers L.J. 443, 460-63 (1983-1984). Another capital defendant, Jack Howard Potts, changed his mind numerous times about whether he wanted to seek review of his death sentence. Potts v. Zant, 638 F.2d 727, 730-35 (5th Cir.), cert. denied, 454 U.S. 877 (1981).19
Because a capital defendant's desire to die may change, it should not be an adequate basis for us to abandon our obligation to perform general appellate review. At least one thorough review should occur to insure that the State does not improperly inflict the gravest of punishments. See State v. Hightower, 214 N.J. Super. 43, 45-46, 518 A.2d 482 (1986) (refusing to allow defendant to waive review of sentence in part because defendant could change his mind).
Tb do otherwise would be to enshrine the concept of waiver. As the Pennsylvania Supreme Court so aptly wrote:
It is evident from the record that Gerard McKenna personally prefers death to spending the remainder of his life in prison. While this may be a genuine conviction on his part, the waiver concept was never intended as a means of allowing a criminal defendant to choose his own sentence. Especially is this so where, as here, to do so would result in state aided suicide. The waiver rule cannot be exalted to a position so lofty as to require this Court to blind itself to the real issue — the propriety of allowing the state to conduct an illegal execution of a citizen.
(Footnote omitted.) Commonwealth v. McKenna, 476 Pa. 428, 441, 383 A.2d 174, 181 (1978).
Given the high stakes involved — society's taking of life — there are serious problems with allowing waiver. Judicial acceptance of a waiver depends in large part on the sig*37nificance of the right being waived. Comment, Capital Punishment and the Waiver of Sentence Review, 18 Harv. C.R.C.L. L. Rev. 483, 496 (1983). Important social interests often preclude waiver of individual rights. Comment, 18 Harv. C.R.C.L. L. Rev. at 504-08.20 Society's interest in the non-arbitrary application of the death penalty is of fundamental importance.
The majority's analysis is flawed because it fails to realize the significance of the rights Mr. Dodd wishes to waive. The United States Supreme Court has repeatedly asserted that "because there is a qualitative difference between death and any other permissible form of punishment, 'there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case'". Zant v. Stephens, 462 U.S. 862, 884-85, 77 L. Ed. 2d 235, 103 S. Ct. 2733 (1983) (quoting Woodson v. *38North Carolina, 428 U.S. 280, 305, 49 L. Ed. 2d 944, 96 S. Ct. 2978, 2991 (1976)); see also Gardner v. Florida, 430 U.S. 349, 358, 51 L. Ed. 2d 393, 97 S. Ct. 1197 (1977). Gregg v. Georgia, 428 U.S. 153, 187, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976); Lockett v. Ohio, 438 U.S. 586, 605, 57 L. Ed. 2d 973, 98 S. Ct. 2954 (1978). Appellate review is not only critical to insure reliability of a death sentence, but also its constitutionality. As the Court wrote in Zant: "[AJlthough not every imperfection in the deliberative process is sufficient, even in a capital case, to set aside a state-court judgment, the severity of the sentence mandates careful scrutiny in the review of any colorable claim of error." 462 U.S. at 885.
The only positive thing one could say about the majority's position that Mr. Dodd can waive his right to appellate review is that it respects his autonomy. But is autonomy the right word? In his brief to this court, Mr. Dodd described what he did during his previous encounters with the law: "I manipulated the system to my advantage." Brief of Appellant, at 24. A review of the record in this case indicates that Dodd has done the same thing in this case once he decided he wanted the death penalty.21 Weighing Mr. Dodd's desires against those of society in the reliable, nonarbitrary application of the death penalty, I find society's interest in the reliability of a death determination more significant.
Ib‘summarize, sound reasons exist for us not to accord undue weight to Mr. Dodd's desire to waive his appeals. Even if we assume that Mr. Dodd's desire to die will be unwavering, future capital defendants are not so likely to remain constant in their desire to end their fives. In addition, the importance of society's interests in the reliable application of the ultimate penalty — death — makes waiver untenable. Absent a more clear statement by the Legislature, we should not allow capital defendants to waive their right to appeal.
*39C
Federal and State Constitutions
Sound public policy alone dictates that we should not allow waiver. We need not even engage in constitutional analysis. Nonetheless, I write briefly on the federal and state constitutional issues raised by Dodd's waiver to expose the serious weaknesses of the majority's position.
First, the United States Supreme Court has not expressly stated that a capital defendant can waive the right to appellate review. In both Whitmore v. Arkansas, 495 U.S. 149, 109 L. Ed. 2d 135, 110 S. Ct. 1717 (1990) and Gilmore v. Utah, 429 U.S. 1012, 50 L. Ed. 2d 632, 97 S. Ct. 436 (1976), a majority of the Court considered the propriety of third party standing to challenge a death sentence. In both opinions, the Court expressly stated that it was not addressing the issue of whether the Eighth Amendment prohibits giving effect to a capital defendant's desire to waive all appeals. Whitmore, at 155; Gilmore, at 1017. As noted above, appellate review is essential to achieve a rehable, nonarbitrary result in capital cases. Therefore, it is a prerequisite for the death penalty to be constitutionally valid.
In addition, the majority's state constitutional analysis is wholly inadequate. It mechanically applies the factors we set forth in State v. Gunwall, 106 Wn.2d 54, 58, 720 P.2d 808, 76 A.L.R.4th 517 (1986). Only cursory mention is given to our decision in State v. Bartholomew, 101 Wn.2d 631, 683 P.2d 1079 (1984), where we struck down several portions of RCW 10.95 as violative of both the Eighth Amendment and the more extensive protections of Const, art. 1, § 14. In Bartholomew, we wrote:
Since the death penalty is the ultimate punishment, due process under this state's constitution requires stringent procedural safeguards so that a fundamentally fair proceeding is provided.
101 Wn.2d at 640. The majority ignores the fact that appellate review is precisely the type of procedure which insures a death penalty determination was fair. Without appellate review of the sentencing phase of a capital case, the State *40could, for example, violate evidentiary rules with impunity. This would contravene Bartholomew and undermine the reliability of a death penalty determination. Therefore, contrary to the majority opinion, waiver of appellate review by a capital defendant raises serious federal and state constitutional issues.
II
Failure To Present Mitigating Evidence
Although each of amici's assignments of error should be given thorough review by this court, I focus on the failure of Dodd's counsel to present mitigating evidence for two reasons. First, the failure to present such evidence raises serious Sixth and Eighth Amendment implications. Second, it is the type of issue that is likely to resurface the next time a capital defendant decides he or she wants to die at the hands of the State.
There is a serious possibility in this case that Dodd's desire to die, not sound tactical strategy, was behind the decision not to present mitigating evidence. I would remand this case so the trial court can determine whether the failure to present mitigating evidence was based on Mr. Dodd's desire to die or was a tactical decision.
A
Eighth Amendment Requirements
The United States Supreme Court in Furman v. Georgia, 408 U.S. 238, 33 L. Ed. 2d 346, 92 S. Ct. 2726 (1972) decided that existing death penalty statutes violated the Eighth Amendment's ban on cruel and unusual punishment. Justice White aptly summed up the problem with the death penalty statutes as they existed in 1972, when he wrote that they lacked a "meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not." 408 U.S. at 313 (White, J., concurring). A few years later, the Court in Gregg v. Georgia, 428 U.S. 153, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976) approved Georgia's revised death penalty statute which created a separate sentencing proceeding where the finder of fact weighs aggravating and mitigating circumstances to determine whether death is the appropriate *41penalty. In particular, the consideration of aggravating and mitigating circumstances serves an important function by channeling jury discretion. Gregg, 428 U.S. at 197 (Stewart, J., plurality).
The presentation of both aggravating and mitigating circumstances is necessary for the jury to make an individualized determination that the death penalty is the appropriate penalty. Eddings v. Oklahoma, 455 U.S. 104, 110-12, 71 L. Ed. 2d 1, 102 S. Ct. 869 (1982). Without this critical information, the jury cannot make an informed, rehable determination. The Court has repeatedly recognized the importance of the presentation of mitigating evidence during the sentencing phase of a capital case. See Skipper v. South Carolina, 476 U.S. 1, 90 L. Ed. 2d 1, 106 S. Ct. 1669 (1986) (holding that capital defendant had right to present all relevant mitigating evidence); Lockett v. Ohio, 438 U.S. 586, 606, 57 L. Ed. 2d 973, 98 S. Ct. 2954 (1978) (overturning Ohio's death penalty law which allowed consideration of only three types of mitigating evidence).
Indeed, withholding mitigating evidence undermines the jury's ability to consider the pivotal question it is supposed to consider dining its deliberations: " 'Having in mind the crime of which the defendant has been found guilty, are you convinced beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency?'" RCW 10.95.060(4). As the California Supreme Court wrote:
To allow a capital defendant to prevent the introduction of mitigating evidence on his behalf withholds from the trier of fact potentially crucial information bearing on the penalty decision no less than if the defendant was himself prevented from introducing such evidence by statute or judicial ruling. In either case the state's interest in a rehable penalty determination is defeated.
People v. Deere, 41 Cal. 3d 353, 364, 710 P.2d 925, 931, 222 Cal. Rptr. 13 (1985);22 State v. Koedatich, 112 N.J. 225, 331-*4232, 548 A.2d 939, 994-95 (1988), cert. denied, 488 U.S. 1017 (1989).
The reasons I stated for not allowing Dodd to waive his right to appeals are equally applicable to his decision not to present any mitigating evidence. Even if Dodd did not want mitigating evidence presented during the penalty phase, his wishes are not necessarily determinative. The State also has an "interest in a reliable penalty determination". Deere, at 364; Koedatich, at 329-36; State v. Hightower, 214 N.J. Super. 43, 518 A.2d 482 (1986).23 "The integrity of the criminal justice system in the non-capricious imposition of the death penally is subverted if a defendant can choose the penally regardless of the merits." Carter, Maintaining Systemic Integrity in Capital Cases: The Use of Court-Appointed Counsel to Present Mitigating Evidence when the Defendant Advocates Death, 55 Tenn. L. Rev. 95, 107, 144 (1987-1988). As Justice Linde of the Oregon Supreme Court wrote so eloquently:
The demand for certainly has other roots than sympathy for a convicted murderer, as sometimes seems to be thought. The higher statutory and constitutional standards for capital cases also reflect the fact that executions at the hand of a state's public officials implicate the state's citizens in an act that many find morally repugnant. It therefore is not a defendant's privilege ... to prevent an adequate test of the prosecution's case for the death sentence, as defendant did in this case.
State v. Wagner, 305 Or. 115, 217-18, 752 P.2d 1136, 1199 (1988) (Linde, J., dissenting), vacated and remanded, 492 U.S. 914 (1989).
The failure to present mitigating evidence during the sentencing phase of a capital case causes additional problems. *43First, it undermines our statutorily mandated duty to conduct proportionality review. RCW 10.95.130(2)(b); see State v. Hightower, 214 N.J. Super. 43, 46, 518 A.2d 482 (1986). Second, it creates a serious dilemma when a defendant changes his or her mind about desiring the death penalty. Either we must conclude that the defendant is stuck with an unfavorable trial record, or require a new trial. The first option seems unfair; the second, too costly. Requiring presentation of mitigating evidence at the outset would be preferable.
B
Eighth Amendment Is the Appropriate Focus
It would be problematic for us to view the failure to present mitigating evidence in this case as solely an issue of ineffective assistance of counsel. The California court in Deere found that failure to present such evidence constituted ineffective assistance of counsel. Deere, at 364. It insisted that lawyers do not fulfill their ethical and legal obligations by simply acting as "mouthpieces" for their clients. Deere, at 364. The California court stated that attorneys representing capital defendants have a duty to present mitigating evidence regardless of their clients' wishes. While this solution has some appeal, I believe the California court's opinion simplifies the serious dilemma faced by attorneys representing capital defendants who insist that they want no mitiga-, tion evidence presented. See Note, Ethical Choices for Attorneys Whose Clients Elect Execution, 3 Geo. J. Legal Ethics 799, 806-10 (1989-1990) (discussing the ethical problems attorneys encounter when their clients facing the death penalty decline to present mitigating evidence).
Justice Broussard, concurring in Deere, suggested a solution which appropriately balances the capital defendants' interests in autonomy and society's interest in a reliable penalty determination. He expressed his hesitation to describe the situation where a capital defendant prohibits his counsel from presenting mitigating evidence as an ineffective assistance of counsel problem. 41 Cal. 3d at 369. He noted the conflicting roles society expects counsel to play under such a *44situation. On the one hand, "[t]he constitutional right to the effective assistance of counsel belongs to defendant personally." 41 Cal. 3d at 369. Simply stated, counsel has a duty to abide by a capital defendant's wishes. On the other hand, society prescribes yet another role for counsel: to present mitigating evidence necessary to insure the reliability of the penalty determination. Justice Broussard noted the trouble when these roles conflict:
But the fact that the state assigns defense counsel a role which may require him to act contrary to his client's wishes on a matter of such vital importance to the client presents a troubling picture. The defense of a capital case often requires a close and trusting relationship between counsel and client; yet our decision requires counsel to violate that trust, to take a position against his client, and perhaps to present evidence revealed to him in confidence by his client.
41 Cal. 3d at 369. I agree with Justice Broussard's reluctance to consider this solely as an ineffective assistance of counsel issue. The more appropriate approach is to characterize this as an Eighth Amendment problem. See Carter, at 116 (arguing that focusing solely on the Sixth Amendment "ignores the competing eighth amendment concern of whether the death penalty is unconstitutionally cruel and unusual").
More recently, the New Jersey Supreme Court in Koedatich adopted Justice Broussard's reasoning. As the New Jersey court noted in Koedatich, at 332, an attorney representing a death row inmate who opposes presentation of mitigating evidence is in an untenable position. Generally, a lawyer is supposed to "abide by a client's decisions concerning the objectives of representation". RPC 1.2(a). In this situation, however, following the client's wishes may result in the client's execution.
The New Jersey Supreme Court recognized that a serious anomaly occurs when we try to apply the standards for ineffective assistance of counsel set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984) to a case *45where defense counsel follows a capital defendant's decision not to present any mitigating evidence:
Applying Strickland-Fritz [State v. Fritz, 105 N.J. 42, 519 A.2d 336 (1987)] to this case, we do not find that defense counsel's conduct was anything but reasonable; he was, after all, adhering to ethical canons by following his client's instructions. Application of the Strickland standard to this situation, in short, results in an anomaly: defense counsel's conduct was reasonable, but the result of that conduct was prejudicial. In our view, it is simply the wrong standard to apply.
112 N.J. at 335. Instead, the court focused on the Eighth Amendment and concluded that mitigating factors must be introduced regardless of the defendant's position. 112 N.J. at 336. See also Carter, at 136-42. We too should focus on the Eighth Amendment's requirements, and conclude that mitigating evidence must be presented regardless of Mr. Dodd's desire to die.
In doing so, I am not advocating that there is a per se obligation to present mitigating evidence in capital cases. We must generally be highly deferential to a counsel's judgment. Strickland, 466 U.S. at 689. Attorneys for capital defendants may make a reasonable strategic decision that presentation of some mitigating evidence may be more harmful than beneficial. Burger v. Kemp, 483 U.S. 776, 793-95, 97 L. Ed. 2d 638, 107 S. Ct. 3114 (1987).
Capital defendants also have some role in determining what mitigating evidence is presented. As the Court in Strickland stated:
Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant.
(Italics mine.) Strickland, 466 U.S. at 691, quoted in In re Jeffries, 110 Wn.2d 326, 333, 752 P.2d 1338, cert. denied, 488 U.S. 948 (1988). Therefore, only strategic choices of the capital defendant should be given weight in a capital proceeding. A defendant's desire to die should not unduly interfere with the refiability of sentencing.
In this case the trial record does not indicate whether Dodd's attorneys in fact made a tactical decision not to *46present mitigating evidence at the sentencing phase. In fact, the record suggests Dodd may have insisted that no mitigating evidence be presented for reasons wholly unconnected with strategic choices, and that his attorneys simply acceded to Mr. Dodd's wishes.24
While it is true that some of the mitigating evidence the defense counsel could have presented would have opened the door to damaging rebuttal from the State, there was significant mitigation evidence that does not appear to have posed such a risk. See Declaration of Teresa A. McMahill. For example, the majority fails to mention the interview with Dodd's sister, Ms. Katherine Dodd Cox. The notes from her interview indicate she could have testified about Dodd's difficult childhood and her continuing love for her brother. She also appears to have been very willing to testify on Dodd's behalf. In addition, the notes from the interviews with Dodd's father, Westley James Dodd, also indicate he could have provided significant mitigating testimony. His father also could have testified about Dodd's childhood, the family's history of mental illness, and his love for his son.
Dodd's band instructor from middle school, Larry Punch, was also willing to testify on Dodd's behalf. He found Dodd mature, rehable, and dependable, and always found Dodd did "above and beyond what was needed at school." Interview with Larry Bunch, at 1. Mr. Bunch stated:
I really liked Wes, and thought highly of him. I think he shouldn't be let out, but I don't want him executed. There are too many good things about the guy.
Interview with Larry Bunch, at 2. Such mitigating evidence would have been essential to "portray the defendant as a *47human being with positive qualities." Goodpaster, The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N.Y.U. L. Rev. 299, 335 (1983). Admittedly, some of the mitigating evidence Dodd could have presented would have prompted rebuttal testimony from the State. But it is not clear that this determined the choice not to present any mitigating evidence from a strategic standpoint. We should remain mindful that mitigating evidence need only have persuaded one juror for Dodd to have received life without parole rather than the death penalty.
While an attorney must generally follow the wishes of his client, there is also a strong public interest in the reliability of a death penalty determination. Therefore, Dodd could not prohibit presentation of all mitigating evidence unless he and his attorneys agreed that there were bona fide tactical reasons for not presenting it. I would remand this case to the trial court for a hearing to determine why Dodd's attorneys failed to present mitigating evidence, with particular emphasis on the issue of whether the decision was tactical.
If it was not a tactical decision, the State must engage in another sentencing proceeding if it wishes to seek the death penalty. There remains the issue of how such evidence should be presented to the finder of fact at such a proceeding if Dodd does not want it presented. To require defense counsel to present mitigating evidence over the objections of a capital defendant would be "anathema to the attorney-client relationship." Carter, at 136. Justice Broussard's reasoning suggests what may be helpful alternatives in Deere:
Trial courts should explore methods of alleviating this conflict. In some cases it might be desirable for counsel, in addition to presenting mitigating evidence, to inform the jury of defendant's personal position. In other cases, the court might permit the defendant himself to address the jury. Alternatively, the court could call persons with mitigating evidence as its own witnesses, or appoint new counsel to call them, and thereby place on the record the mitigating evidence essential to a careful, balanced penalty determination.
In sum, both the state's need to assure the fairness and reliability of the penalty determination, and defendant's rights to personal choice and dignity, command respect. It is essential that the penalty trial constitute a balanced presentation of aggravating and mitigating evidence, but this goal should be *48achieved, as far as possible, with respect and accommodation for defendant's personal values and for his relationship with counsel.
Deere, at 369 (Broussard, J., concurring); see also Koedatich, at 336 (approving Justice Broussard's conclusion that trial courts must take steps to insure that mitigating factors are introduced); Carter, at 149-51 (proposing the appointment of an attorney whose specific role is to present mitigating evidence).
Ill
Conclusion
Although Dodd's crimes are gruesome, and he has expressed a desire to die, we must not let that obscure our duty to review his sentence. Society has a significant interest in the reliability of death penalty determinations. Therefore, both appellate review and presentation of mitigating evidence are necessary, regardless of a defendant's desire to die. To give Dodd's wishes paramount importance would be to sanction state assisted suicide.
Therefore, I would consider all of the issues raised by amici on Dodd's behalf. I believe the failure to present mitigating evidence may have violated the Eighth Amendment. Unless bona fide tactical reasons existed for presenting no mitigating evidence, the failure to present mitigating evidence raises serious problems with the reliability of a death penalty determination. It is not clear from the record whether Dodd and his attorneys made a tactical decision or whether Dodd, who desires to die, simply demanded that no mitigation evidence be presented. Therefore, I would remand this case to determine whether or not a tactical decision was made about the presentation of mitigating evidence.
Smith, J., concurs with Utter, J.
Reconsideration denied November 19, 1992.
The concurrence takes an even more circumscribed view of our duty under RCW 10.95.130(2) by arguing we should not consider mitigating evidence that was not presented to the jury. It fails to note juries are supposed to weigh aggravating and mitigating evidence in answering the question posed in RCW 10.95.060(4). Where the jury did not have the opportunity to consider the mitigating evidence, it is appropriate that we at least perform that task. In fact, it is precisely such weighing that makes Washington's death penalty meet Eighth Amendment requirements. See Gregg v. Georgia, 428 U.S. 153, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976) (approving Georgia's revised death penalty statute which created a sentencing proceeding where the finder of fact weighs aggravating and mitigating circumstances to determine whether death is the appropriate penalty). Where the *34jury has not had the opportunity to consider mitigating evidence, our statute, as well as the Eighth Amendment, require weighing of all aggravating and mitigating circumstances.
In effect, the concurrence would allow capital defendants who want to die to undermine our statutorily mandated review responsibility under RCW 10.95-.130(2). The results could be disastrous in future cases. Under the concurrence's view, we would allow capital defendants to be put to death simply because they wanted to die, even when significant mitigating evidence was available, but not presented to the jury. In effect, we would be sanctioning state-assisted suicide.
It is not uncommon for innocent people to be convicted and sentenced to death. See Bedau & Radelet, Miscarriages of Justice in Potentially Capital Cases, 40 Stan. L. Rev. 21 (1987-1988) (presenting 350 cases in which defendants convicted of capital or potentially capital crimes in this century, and in many cases sentenced to death, have later been found to be innocent).
Self-destructive individuals may actually commit crimes to have the State become the mechanism for their suicide. White, Defendants Who Elect Execution, 48 U. Pitt. L. Rev. 853, 871-75 (1986-1987); Strafer, at 864-66; Solomon, Capital Punishment as Suicide and as Murder, in Capital Punishment in the United States 432, 433-35 (1976). By approving what amounts to short-order, state-assisted suicide in this case, we may actually be creating an incentive, rather than a deterrent, for some individuals to commit crimes.
One advocate of capital defendants' right to personal autonomy and choice suggests that death row inmates should be free to change their minds at any time about the propriety of review and should be entitled to appellate review when and if they desire it. Note, Death Row Right to Die: Suicide or Inmate Decision?, 54 S. Cal. L. Rev. 575, 627 (1980-1981). The author, however, fails to acknowledge the disorder and extra costs such vacillation could create for our court system. The facts of Potts, where the capital defendant repeatedly changed his mind about whether or not to appeal his death sentence, aptly illustrate what a farce this can create. It is much more sensible for us to engage in a single, thorough review of a capital defendant's death sentence at the outset.
For example, capital defendants generally cannot waive the right to be present at trial. Hopt v. Utah, 110 U.S. 574, 579, 28 L. Ed. 262, 4 S. Ct. 202 (1880); Lewis v. United States, 146 U.S. 370, 36 L. Ed. 1011, 13 S. Ct. 136 (1892); Hall v. Wainwright, 733 F.2d 766, 775 (11th Cir. 1984), cert. denied, 471 U.S. 1107 (1985); Profitt v. Wainwright, 685 F.2d 1227, 1257-58 (11th Cir. 1982), cert. denied, 464 U.S. 1002 (1983); Bustamante v. Eyman, 456 F.2d 269, 274 (9th Cir. 1972) (stating that defendant "did not, indeed could not, waive his right to be present in the courtroom at trial"); Near v. Cunningham, 313 F.2d 929, 931 (4th Cir. 1963). But cf. Campbell v. Blodgett, 978 F.2d 1502 (9th Cir. 1992) (holding that capital defendant, who wished to prepare himself for trial, could waive presence during jury selection).
The public's interest in the integrity of capital proceedings also limits many other choices of capital defendants. For example, the Seventh Circuit stated in United States v. Taylor, 569 F.2d 448, 452 (7th Cir.), cert. denied, 435 U.S. 952 (1978):
It does not inevitably follow, however, that this right of self-representation comprehends any correlative right to preclude the trial court from appointing counsel and authorizing him to participate in the trial over the accused's objection in order to protect the public interest in the fairness and integrity of the proceedings.
See also Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 65 L. Ed. 2d 973, 100 S. Ct. 2814 (1980) (holding that public's right to receive information about criminal justice system restricted the ability of the defendant to waive his Sixth Amendment right to a public trial); Singer v. United States, 380 U.S. 24, 13 L. Ed. 2d 630, 85 S. Ct. 783 (1965) (upholding restrictions on a defendant's right to waive trial by jury).
For example, during Dodd's competency hearing, he introduced highly prejudicial excerpts from his diary, so that it could be part of the record on review. Even the trial court had excluded them.
Although not expressly overruled, the California Supreme Court has subsequently disapproved of Deere. See People v. Lang, 49 Cal. 3d 991, 782 P.2d 627, 264 Cal. Rptr. 386 (1989); People v. Bloom, 48 Cal. 3d 1194, 774 P.2d 698, 259 Cal. Rptr. 669 (1989).
At least one state court'has held that simply affording a defendant an "opportunity" to present mitigating evidence is sufficient to meet the Eighth Amendment's standards. See Bishop v. State, 95 Nev. 511, 516, 597 P.2d 273, 276 (1979). This position is untenable. It is the individual consideration of each defendant and the circumstances of each case that the Court has found sufficiently channels the factfinder's discretion to meet constitutional requirements. As the Court wrote in Eddings, "capital punishment must be imposed fairly, and with reasonable consistency, or not at all." Eddings v. Oklahoma, 455 U.S. 104, 112, 71 L. Ed. 2d 1, 102 S. Ct. 869 (1982). The sheer magnitude of society's interest should outweigh the choice of the capital defendant.
The following line of questions from the competency hearing suggests that Dodd alone, not his attorneys, made the determination not to present mitigating evidence:
"Q: Here’s a case, Jeffries, the defense attorney didn’t call certain witnesses.
"A: I would waive that as an issue.
"Q: But you didn’t call any witnesses on your death penalty case, your attorneys just sat there like bumps on a log.
"A: Unwillingly.
"Q: Why did they do that?
"A: Because that's what I told them they would do.” Verbatim Report of Proceedings (June 5, 1991), at 118-19.