(concurring in part, dissenting in part) — The United States Supreme Court vacated and remanded this court's judgment in State v. Bartholomew, 98 Wn.2d 173, 654 P.2d 1170 (1982) (Bartholomew I), defendant's cert. denied, 103 S. Ct. 3548 (1983), to be reconsidered in light of Zant v. Stephens,_U.S._, 77 L. Ed. 2d 235, 103 S. Ct. 2733 (1983).
Nonstatutory Aggravating Evidence
This court's prior decision in Bartholomew I invalidated provisions of the capital punishment statute, RCW 10.95, which allowed the admission of nonstatutory aggravating evidence at the sentencing phase of capital cases. Bartholomew I limited the nonstatutory aggravating factors to prior convictions and evidence to rebut matters raised in mitigation by the defendant. Bartholomew I, at 198-99.
The majority, in Bartholomew II, continues to hold that the provisions of RCW 10.95 remain invalid after reconsideration in light of Zant. The majority indicates that these restrictions on nonstatutory aggravating evidence are mandated by either federal constitutional standards or the due process and cruel punishment clauses of our state constitution.
The majority's analysis of federal constitutional standards is founded on the "prejudice" standard found in Gregg v. Georgia, 428 U.S. 153, 49 L. Ed. 2d 859, 96 S. Ct. 2909, reh'g denied, 429 U.S. 875, 50 L. Ed. 2d 158, 97 S. Ct. 197 (1976), and the "reliability of evidence" standard found in Gardner v. Florida, 430 U.S. 349, 51 L. Ed. 2d 393, 97 S. Ct. 1197 (1977).
The Zant decision that initiated our reconsideration, and subsequent United States Supreme Court decisions, establish that the majority's interpretation of Gregg and Gardner is clearly erroneous and that this court's invalidation of portions of the Washington capital punishment statute, RCW 10.95, cannot be sustained under the United States Supreme Court's interpretation of the Eighth Amendment.
Zant holds that the constitution does not restrict the *651jury's consideration of nonstatutory aggravating factors in deciding whether or not to impose a sentence of death.
[Statutory aggravating circumstances play a constitutionally necessary function at the stage of legislative definition: they circumscribe the class of persons eligible for the death penalty. But the Constitution does not require the jury to ignore other possible aggravating factors in the process of selecting, from among that class, those defendants who will actually be sentenced to death.
(Italics mine.) Zant, 103 S. Ct. at 2743.
In construing Gregg, the Court in Zant concluded that the substantive constraints on evidence in aggravation is that the State must make known to the defendant such evidence prior to the proceeding and such evidence cannot be prejudicial. Otherwise, it is preferable not to impose restrictions. Zant, 103 S. Ct. at 2747-48. The opinion further holds that it is error to permit, as evidence of aggravating circumstances, conduct which is constitutionally protected. Zant, 103 S. Ct. at 2746.
In California v. Ramos, _ U.S._, 77 L. Ed. 2d 1171, 103 S. Ct. 3446 (1983), the Court reiterated its position stated in Zant that the constitution does not restrict jurors from considering nonstatutory aggravating factors:
Once the jury finds that the defendant falls within the legislatively defined category of persons eligible for the death penalty . . . the jury then is free to consider a myriad of factors to determine whether death is the appropriate punishment.
Ramos, 103 S. Ct. at 3456. The Court indicated that the Gregg opinion did not undertake to dictate to the State the particular substantive factors that should be deemed relevant to the capital sentencing decision. The Court stated that the only substantive limitations on the particular factors that a sentencing jury may consider are that they not be prejudicial or evidence that the defendant has had no opportunity to explain or deny. Ramos, 103 S. Ct. at 3453-54. The Court interpreted the rule of Gardner as follows:
In Gardner, the Court reversed a death sentence that had been imposed in part on the basis of a confidential *652portion of a presentence investigation report that had not been disclosed to either the defendant or his counsel. Because of the potential that the sentencer might have rested its decision in part on erroneous or inaccurate information that the defendant had no opportunity to explain or deny, the need for reliability in capital sentencing dictated that the death penalty be reversed.
Ramos, 103 S. Ct. at 3454.
In Barclay v. Florida,_U.S._, 77 L. Ed. 2d 1134, 103 S. Ct. 3418, 3424 (1983), the United States Supreme Court stated:
We have never suggested that the United States Constitution requires that the sentencing process should be transformed into a rigid and mechanical parsing of statutory aggravating factors.
The majority's holding in Bartholomew II, that nonstatu-tory aggravating evidence (other than convictions or in rebuttal) is unconstitutionally prejudicial, cannot be sustained on the basis of Gregg or Gardner. The constitution does not prohibit consideration at the sentencing phase of information not directly related to either statutory aggravating or statutory mitigating factors, so long as that information is relevant to the character of the defendant or the circumstances of the crime.
The majority opinion next addresses state constitutional protections and holds that the due process and cruel punishment provisions are offended by the provisions of RCW 10.95.060(3) in any case involving capital punishment by (1) allowing the introduction of any evidence regardless of its admissibility under the rules of evidence, including hearsay evidence, and (2) allowing evidence of defendant's prior criminal activity regardless of whether defendant was charged or convicted as a result of such activity. While I am in general agreement with this holding, it does not follow that the authority to receive nonstatutory aggravating evidence must be confined to evidence in rebuttal of mitigation. The rules governing admissibility of evidence are *653premised on allowing evidence which is trustworthy, reliable, and not unreasonably prejudicial. The purpose of these rules is to afford a litigant a fair trial and insure compliance with the constitutional guaranties of due process. The portion of RCW 10.95.060(3) that authorizes the admission of evidence of a defendant's alleged prior criminal activity (other than convictions) is inconsistent with these rules of evidence and state constitutional standards. Admissibility of such evidence is of such an unreasonably prejudicial nature as to be violative of article 1, section 14 of the state constitution. Courts in some jurisdictions have considered similar questions under varying circumstances, and for varying reasons reached the same result. E.g., Scott v. State, 297 Md. 235, 465 A.2d 1126, 1135-36 (1983); Perry v. State, 395 So. 2d 170, 174 (Fla. 1980); Cook v. State, 369 So. 2d 1251, 1257 (Ala. 1978); State v. McCormick, 272 Ind. 272, 397 N.E.2d 276, 280 (1979). I find it appropriate to place a blanket of inadmissibility on such evidence.
However, I see no basis for holding that the rules of reliability and prejudice mandate that we limit nonstatutory aggravating evidence (other than convictions) to matters in rebuttal of mitigating evidence. Due process requires that the sentencing jury's decision be based on reliable and nonprejudicial evidence. Basic fairness in the balancing process between aggravation and mitigation requires the jury to consider all admissible evidence, whether proposed by the State or defendant. State constitutional guaranties do not mandate that the State's nonstatutory aggravating evidence be limited to rebuttal evidence of mitigation. The majority rule unfairly restricts the State's right to introduce relevant, reliable evidence.
I would provide that admissibility of nonstatutory aggravating evidence be governed by the rules of evidence, and its admissibility be determined by the trial court at the sentencing phase. I see no basis or justification to broaden the protections of the state constitution beyond those guaranties provided in the federal constitution in this context. *654In all other respects, I concur in the majority opinion.
Dimmick, J., concurs with Dore, J.